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THE ADMINISTRATION
OF DEPENDENCIES
A STUDY OF
THE EVOLUTION OF THE FEDERAL EMPIRE,
WITH SPECIAL REFERENCE TO AMERICAN
COLONIAL PROBLEMS
BY
ALPHEUS H. SNOW
G. P. PUTNAM'S SONS
NEW YORK AND LONDON
Ube ftntcfterbocliec ptces
1902
Copyright, 1903
BY
G. P. PUTNAM'S SONS
Published, September, 1902
TCbe Imfckerbocker prcM, Hew Ifork
^^
PREFACE
THE study here undertaken was suggested by a con-
versation two years ago, on the problems arising
from the recent acquisition of our Insular Posses-
sions, in which it was emphasized that there is one clause
of the Constitution of the United States — the clause by
which Congress is given power "to dispose of and make
all needful rules and regulations respecting the territory
or other property belonging to the United States" — to
which the Supreme Court has never attached a definite
and certain meaning. Believing that the authors of the
Constitution, in framing that instrument, almost .simul-
taneously with the enactment, by the American Congress,
of an ordinance for the administration of the Northwest
Territory as a dependency of the American Union, must
have intended the only clause on this subject to express
the true principles of the administration of dependencies,
as they believed them to be, I attempted to ascertain the
correctness of this belief.
The inquiry necessitated a careful examination of the
issues of the American Revolution, and, as a knowledge
of the theory and practice of the administration of the
American Colonies is essential to the understanding of
these issues, my investigation extended back to the in-
ception of the American Colonies in 1584. As a result
of the inquiry, I found my belief fully corroborated — the
clause in question in fact containing a statement of the
principles of the administration of dependencies in a
Federal Empire. I then examined the American, British,
and European theory and practice from the adoption of
the Constitution until the present time, to discover to
• • •
111
iv Preface
what extent the principles embodied in the clause had
been recognized and followed* and what the result had
been. The whole inquiry thus became a study of the
evolution of the Federal Empire — a form of political
organism which, though commonly believed to be of
modern origin, was in fact more clearly understood by
our Revolutionary leaders than by any other statesmen
before or since their time, and which was recognized by
them as being not only necessary and proper, but also
beneficent in its operation, and hence desirable, for
America as well as for other States.
A. H. S.
Wasuington, May, 1902,
CONTENTS
CHAPTBR
>
I.
II.
III.
IV.
V.
VI.
VII.
' VIII.
IX.
X.
> XI.
XII.
> XIII.
- XIV.
XV.
XVI.
XVII.
XVIII.
XIX.
- XX.
XXI.
Introduction ....
French Administration, 1600-1787
English Administration, 1584-1606
TkE American Charter of 1606 .
Imperial Councils, 1606-1625
Imperial Councils, 1625-1750
Imperial Nomenclature, 1625-1750
The American Constitution of 1750
Realm or Empire, i 750-1 765
The Stamp Act Congress, 1765 .
Plans of Settlement, i 765-1 767 .
Imperial Unity, 1768 .
The Imperial Secretariat, 1768 .
America's Position Criticised, 1769
Realm, — not Empire, 1769-1774 .
The Federal Empire Defined, 1774
America's Ultimatum, 1774 .
British Propositions, 1775 .
The Final Issue, 1775-1776 .
The American Empire Planned, 1776
The American Empire Declared, 1778
The Dispositive Power, i 779-1 783
PAGB
I
II
24
36
49
66
91
III
128
169
191
208
224
241
261
280
294
318
350
374
400
VI
CMArrmR
XXII.
XXIII.
XXIV.
XXV.
XXVI.
XXVII.
Contents
The Regulative Power, i 783-1 787
The Imperial Power, 1787 .
European Administration, 1787-1902
British Administration, 1780-1902
American Administration, i 787-1902
Imperial Obligations .
PAGB
419
445
474
498
537
578
THE ADMINISTRATION OF
DEPENDENCIES
THE ADMINISTRATION OF
DEPENDENCIES
INTRODUCTION
GOVERNMENT may be conceived of either as the
expression of the popular will or as a science;
Regarding it as the expression of the popular
will, there are no principles which determine the decision
of its problems other than those which are commonly
accepted as such by the people, and each question, as it
arises, is to be decided by the light of such ordinary
knowledge and capacity for reasoning as the people may
happen to have at the moment when the decision is to
be made. Regarding government as a science, the
problems which arise are decided according to principles
which can only be ascertained by study and experience,
and which, if properly applied, will lead to a right, as
distinguished from a wrong solution. In this view, the
depositary of governmental power is required to bring
to each problem a knowledge of historical and economic
facts and of social, political, and economic principles, a
faculty for scientific and judicial investigation, and a
trained capacity for reasoning.
Government so constituted that the depositaries of
governmental power are persons of ordinary common
sense, without expert knowledge and experience, is
popular government. Government so constituted that
2 The Administration of Dq)endencies
the 6cpQat2iies of govemmental povcr are qualified to
decide the problems by expat knowledge, investigation,
and reasoning, and actually do so decide them, is expert
government.
Popular government implies an absence of conditions
concerning the manner of action* No such conditions
are possible in the nature of things. A body of men
elected to express the will of the people of the State acts
necessarily after deliberating concerning facts which are
of common knowledge among the people. The power
exercised is absolute power, and the persons subject to
popular government are subject to mere human wilL
Expert government necessarily implies a condition im-
posed by the people relating to the manner of the exer-
cise of the power granted by them to their governmental
agents. The condition b that the depositaries of govern-
mental power shall exercise their power according to the
political and economic necessity in each case, as that
necessity shall be determined by expert knowledge and
scientific investigation.
Popular government is abominable in theory, being a
government "by men, not principles," and hence a form
of slavery tempered only by the fact that each individual
is supposed to participate in his own mastery; but it
works well for some purposes, because it encourages
each individual to interest himself in the government of
the State and calls into play individual initiative. Ex-
pert government — government "by principles, not men "
— is ideal in theory, but the frailty of man makes this
form of government impracticable, and it has the dis-
advantage of discouraging individual initiative.
The possibility of the government being wholly popu-
lar or wholly expert exists in every kind of State. A
monarchical State, with which, perhaps, the idea of ex-
pert government is usually associated, may be under
popular or expert government according as the monarch
Introduction 3
habitually reflects the will of the people or exercises his
power according to the expert knowledge of himself and
his advisers. A republican and democratic State may
evidently be under either popular or expert government,
according as its elected depositaries of power habitually
bring to the decision of all governmental problems the
common knowledge and ability and a purpose to merely
reflect the will of the people, or an expert knowledge
and an ability for scientific investigation. What is true
of the monarchical and republican State is plainly also
true of the oligarchical State. Nor does it make any
difference whether the power of the governmental agencies
is centralized or decentralized — the depositaries of power
may plainly either reflect the will of the people or may
act expertly. In the Federal State, where the people,
by their written Constitution, divide the supreme power
between the Central Government and the Governments
chosen by the Member-States, all these Governments
may evidently either reflect the will of the people or may
act expertly. Nor does it make any difference whether
the spheres of governmental power within which the
governmental agencies in the State act are definitely
limited by written Constitution or are left with indefinite
limits under an unwritten Constitution ; — the depositaries
of power in either case may either reflect the will of the
people or may act expertly. In determining whether
their governmental agents shall be obliged to reflect the
popular will or shall be obliged to act expertly, the peo-
ple of each State are actuated by considerations wholly
separate and apart from those relating to the form of
government which they may have chosen to adopt. The
condition that all governmental action shall be based on
expert knowledge and investigation will be omitted or im«
posed by them according to the theory as to the nature
of all government which prevails among them. If they
regard government as merely the expression of the popu-
4 The Administration of Dependencies
lar will, they will omit the condition ; if they regard it as
wholly or in part a science, they will impose the con-
dition.
As matter of fact, no States do commit themselves
wholly to the theory that government is the expression
of the popular will or wholly to the theory that it is a
science. They recognize that it is not exactly either the
one or the other, but is a combination of both — that
although there are principles, they are never capable of
exact application, and that their application must vary to
some extent according to the common will and sentiment
of the people to whom they are applied. The efforts of
modern statesmanship are directed therefore toward pre-
serving the two conceptions in the State side by side, and
towards providing instrumentalities according to which
the conclusions arrived at by examining from each stand-
point each question as it arises may be formulated and
the one conclusion used to correct the other. Hence in
the modern State, by its Constitution, written or un-
written, conceived of as emanating from all the people
of the State, the Government is divided into two parts
or branches, one of which is so organized as to reflect the
will of the people and the other so organized as to decide
questions of government expertly. By one or the other
of these two great branches of the Government, in the
last analysis, all the powers of the State, of whatever
kind, must be exercised.
The people of a State may require those two branches
to be related to each other in any way they see fit. The
powers of government may therefore be divided between
these two agencies, so that they are independent co-
agents, each having a distinct sphere of action. The
legislative power — the power of changing the law, — the
judiciary power — the power of interpreting the law, —
and the executive power — the power of executing the
law, — may thus be divided between the two branches so
Introduction 5
that the popular branch shall be the Legislature and
Judiciary and the expert branch the Executive, or so
that the popular branch shall be the Legislature and Ex-
ecutive and the expert branch the Judiciary, or so that
the popular branch shall be the Executive and the Ju-
diciary and the expert branch the Legislature ; or so that
the expert branch shall be the Legislature and the Ju-
diciary and the popular branch the Executive, or so
that the expert branch shall be the Legislature and the
Executive and the popular branch the Judiciary, or so
that the expert branch shall be the Judiciary and the
Executive and the popular branch the Legislature. The
last is the usual arrangement.
The people of a State may also divide the govern-
mental power among their governmental agents on the
principle that the one of the two branches shall exercise
all the powers of government — legislative, judicial, and
executive — and the other shall superintend it. All
powers of government may thus be conferred on the ex-
pert branch of the Government, and the popular branch
may superintend ; or all powers may be conferred on the
popular branch and the expert branch may superintend ;
or a part of the powers of government may be conferred
on one branch subject to the superintendence of the other
and the other powers remain divided so that each branch
as respects them is independent of the other.
The superintendence may occur in many different ways
— by advice given before the act or after the act is formu-
lated and before it becomes final, by negativing the act,
by re-examining the whole subject and making a new
decision, by refusing money supplies necessary to carry
out proposed action, or by impeaching and removing
from office the official who has performed, or who threat-
ens to perform, the act disapproved by the superintend-
ing body.
Though it is said that the popular branch of the Gov-
6 The Administration of Dependencies
ernment of the modern State is independent of the expert
branch, and vice versa, this is in fact never the case, but
each exercises some supervision over the other. The
expert branch, though having no legislative power, ad-
vises the popular branch concerning proposed changes to
be made in the law and refuses to recognize such changes
if after careful interpretation they conflict with the funda-
mental law which the people have made unchangeable by
the Legislature. The popular branch controls the Execu-
tive by impeachment, and by refusing to supply money
by taxation. Division of powers between the popular
and the expert branch and mutual superintendence are
equally interwoven in the Constitutions of modern States.
/ A State is a person, having a body and personality
composed of specific lands and the populations inhabiting
i them. As respects these specific lands and populations,
the power of the State is undoubtedly to be classified ia
the usual manner as legislative, judicial and executive.
IBut the lands and populations which constitute the body
and personality of the State are not the only lands and
populations over which it may exercise power. It is a fact
that the State may and does exercise power over lands and
populations which are not, and cannot, in the nature of
things, be a part of the body and personality of the State,
and that it may be in a permanent relationship to these
lands and populations of such a kind that it must exercise
power over them permanently. External lands and popu-
lations may be recognized, by the State, as States for-
eign to itself, with which it may contract ; and it may,
therefore, recognize itself as under an implied contract
by which it is obligated to the external populations
which are permanently under its control. Under such
express or implied contracts, the State may be obligated
to render permanent services to these populations. Such
services may be of any kind whatsoever, and do not
necessarily involve the doing of acts which can be cer-
Introduction 7
tainly described as either leg^islative, judicial, or execu-
tive acts of the State. In the performance of such
functions, the agents of the State are not changing the |
law of the State, nor interpreting it, nor executing it. *
They arc wielding the power of the State as if the State i
were a person. They represent the State, as a political
person, in the performance of services towards another
State, as a political person. The acts of the State done
in the performance of those services are all legislative,
judicial or executive acts, but they are legislative, judi-
cial or executive acts done not by the State for itself,
but by the State for another State. As all agencies of
the State belong either to the popular or the expert
branch of the Government, the State, in performing
such services, necessarily acts either through the popular
or the expert branch exclusively, or through one super-
intended by the other.
All lands and populations subject to the power of a \
State, but not so related to it that they form by common
consent an integral part of the body and personality of
the State, which are called the dependencies of the State,
are, therefore, capable of being viewed, in their relations
to the State, in two different ways. They may be re-
garded as mere prolongations of the soil of the State, and
its powers over them may be regarded as mere extensions
of the legislative, judiciary and executive powers of the
State. In this view, all inherent political personality of
the dependencies is denied. They are not States, but
mere extremities of the body and personality of the
State, in which the heart-action of the State is less strong
than at the centre. They may also be regarded as States
distinct from and external to the State. In this view
every dependent population within specific territorial
limits determined by the natural circumstances and con-
ditions is regarded as, by the nature of things, a State,
whether it has the capacity to establish and the power to
8 The Administration of Dependencies
maintain a distinct Government for itself as a State, or
not. On this conception, it is evident that the theory
that the power exercised is a mere prolongation or ex-
tension of the legislative, judicial, and executive power
as it is exercised by the State within itself is not
applicable. The State does not exercise its power di-
rectly upon the individual inhabitants of the dependen-
cies. There is an intervening personality — a State
— between the State and each individual inhabitant of
the dependencies, and the State substitutes itself, by its
own will or by contract express or implied, for this in-
tervening personality, and exercises within the depend-
ency the legislative, judicial, and executive power in
substitution for this personality.
It is even possible to go so far in regarding depend-
encies as naturally States, as to regard the State as act-
ing within the dependencies wholly by their permission.
Such a permissive power is plainly different in character
from the legislative, judicial, and executive powers which
the State exercises within itself.
A State and its dependencies, in whatever light the
latter are regarded, constitute, according to the accepted
public law of the civilized world, an Empire. The old
conception of an Empire as a Kingdom composed of
Kingdoms, and of an Emperor as a King who rules over
other Kings, is passing away, and in its stead has come
the conception of the Empire as a State composed of
distinct and often widely separated populations or States,
of which a State is the Central Government or Emperor.
The State so acting as the Central Government or Em-
peror— whatever may be its inner constitution, whether
monarchical, oligarchical, republican, whether federal or
unitary — is called the Imperial State. The study of the
administration of dependencies is in fact, therefore, the
study of the form and nature of the modern Empire.
The problem of the administration of dependencies in-
Introduction 9
volves, first of all, reaching a definite conclusion on the
point whether dependencies are prolongations of the soil
of the State, or whether they are, in the nature' of things,
within territorial limits determined by natural circum-
stances and conditions, States in permanent relationship
with the State. Even if it be granted that they are
States, it must be settled whether they are in a non-
contractual or a contractual relationship, and if in a con-
tractual relationship, whether under an implied or an
express contract. If it shall be concluded that depend-
encies are essentially States in a permanent contractual
(that is, federal) relationship with the State, the question
will arise whether the power which the State exercises
over its dependencies is in its essence strictly legislative,
judicial, or executive, or a power distinct from, though
inclusive of, all these powers, and whether the power can
best be exercised by the popular or the expert branch of
the Government of the State, and in what manner the
one should act and the other superintend. If it shall be
concluded that the administration of dependencies is a
kind of governmental work which can be best performed
through the expert branch of the Government under the
superintendence of the popular branch, it will be neces-
sary to consider the form which the instrumentalities of
expert Government must take, in order to best fulfil the
functions and obligations of the Imperial State.
This requires a study of the whole administration of
dependencies by States from the time that the personality
of States began to be recognized and it was possible to
distinguish between the State and its dependencies, —
that is, from the beginning of the seventeenth century.
Starting at this point, it is necessary to select out of the
multitude of acts and documents those which have, by
the common consent of the successors of the actors of
them, had an effect in formulating opinion concerning
the relationship of the State to its dependencies and
lo The Administration of Dependencies
concerning the character and extent of its power over
them ; and to study these acts and documents in the light
of modern political science. France and England furnish
the earliest examples of States consciously recognizing
themselves as legal and political persons, and as such
entering into a permanent relationship with external do-
minions and countries and endeavoring to maintain the
relationship unbroken. The experience and thought of
these States, therefore, naturally demand first attention.
CHAPTER I
FRENCH ADMINISTRATION, ifioO-IjSj
FOR eight centuries before the French Revolution, the
King, in exercising the supreme power, stood, ac-
cording to the theory of French jurisprudence, in a
fiduciary relation to the people, being regarded as under an
obligation to decide problems of government scientifically
and judicially. No written Constitution had ever been
dreamed of. No system of popular elections was consid-
ered desirable. Yet there was, until the seventeenth
century, at least, a good and orderly government. France
was a great nation and successfully governed throughout
a great domain until the middle of the eighteenth
century.
Vicomte d'Avenel, in his Richelieu et la Manarchie
Absoluey published in 1895, speaking of the Constitution
of France during the period of the traditional monarchy,
— from 987 to 1620, — quotes with approval the saying of
Bodin in his treatise De la Ripubliquey published in 1580:
The royal or legitimate monarchy is that in whiqh the sub-
ject obeys the laws of the monarch and the monarch the laws
of nature, leaving to the subjects their natural liberty and
their private property.
Vicomte d'Avenel, in the course of his remarks on the
way in which these principles were worked out during
the traditional monarchy, says:
The relationship between the King and the subject differed
from that between lord and vassal, in that the King was the
II
12 The Administration of Dependencies
only lord in France who made oath to his vassals. .
There were in France sovereign laws, which were supreme
over the power of the King, and according to which he was
obliged to direct his political life; in his private life, the King
was only a private citizen before the proper courts. . .
The fundamental laws of the Kingdom were nothing but
legal usages, which were binding on the monarchs themselves.
Whether written or unwritten, whether enacted by a previous
King or deriving their force from tradition only, these laws
were regarded as unchangeable. ** They have been observed
for so long," says Seyssel, in 15 19, in his book La Grande
Monarchic de France^ * * that the Kings do not undertake to in-
terfere with them, and when they wish to do so, no one obeys
their commands." . . . Although the King possessed the
legislative power, nevertheless if he saw fit to change, by edict,
certain ancient arrangements {dispositions) ratified by public
opinion, he was reproached with having violated the laws of
the State, as if the consecration of time had given them an in-
destructible force. This regard for tradition appears inces-
santly in the writings and public discourses of the period.
Under Louis XIII. [from 16 10 to 1643, during which time,
under the influence of Richelieu, the traditional monarchy
ceased to exist except in theory], writers and public speakers
were in the habit of citing freely, as authorities, the acts, the
charters, or the bulls of the iirst Capetian Kings, and even
those of earlier date. In the books, when a subject was ex-
amined, the author went back to the times of the Greeks and
Romans. ... In the matter of taxation, the right of the
King was remarkably limited. The States-General not only
discussed the necessity of the aidc^ but also determined the
manner in which it should be levied and collected. . . .
The principle that taxes are not legal except by consent of the
people who pay them was violated more than once before the
time of Louis XIII., but it had not ceased to be recognized
even then. It was the doctrine of Old France. Every one
knows what happened later on, but no one, in those old days,
could have imagined the *^ taillabU et corviablc d mcrci** of
Louis XIV.
French Administration, i6cx>-i787 13
From the beginning of the Capetian monarchy, we observe
two distinct kinds of legislative acts of the King; one relating
to the domains of the King, in which he speaks in his own
name; the other relating to the whole of France, emanating
from the united action of the King and Barons, — often even
from that of the King and the people. . . . Seyssel thinks
that "it is necessary the important affairs of the Kingdom
should be consulted upon by a Council of personages drawn
from the different Estates, both ecclesiastical and secular."
Bodin regards it as less dangerous to have a bad King, guided
by a good Council, than a good King, guided by a bad Council.
Throughout the existence of the traditional monarchy,
the King acted by the advice of expert counsellors,
some of whom acted as his Ministers.
During this period, this theory of government became
crystallized in the French language, and the study of the
words they used to express the exercise of the supreme
power is, in fact, a study of the unwritten Constitution of
France. The two words which expressed the exercise of
the supreme power were the verbs ordonner and disposer.
Of these the latter was the more strictly generic, though
the former was used also in a generic sense. The Grand
Vocabulaire Francois of 1770 treats the words as syn-
onymes, defining ordonnance (ordinance) as a disposition
(disposition).
Vattel, writing of the general public law in 1758, in
his great work, The Law of Nations^ said of the power
of the state :
Le pays qu'une nation habite ... est T^tablissement
de la nation ; elle y a un droit propre et exclusif .
Ce droit comprend deux choses: i. Le domaine, en vertu
duquel la nation pent user seule de ce pays pour ses besoins,
en disposer et en tirer tout Tusage auquel il est propre. 2.
L'empire, ou le droit du souverain commandement, par lequel
elle ordonne et dispose ^ son volunt^ de tout ce qui se passe
dans le pays.
14 The Administration of Dependencies
A translation of which is :
The country which a nation inhabits ... is the estab-
lishment of the nation; in this country it has a proprietary
and exclusive right.
This right includes: i. The domain, by virtue of which
the nation may exclusively use the material resources of the
country for its needs, may dispose of them, and may draw
from them every kind of utility which pertains to them. 2.
The empire, or the right of supreme command over persons,
by virtue of which it orders and disposes, according to its
will, of the whole intercourse and commerce of the country.
Every act of the depositary of the supreme power in a
State, therefore, according to Vattel, whether it relates
to the partition of the soil or other arrangements con-
cerning it, or to the use by the State of private property
for public uses, or to grants of governmental authority
over persons, or to the control of the action of persons
by legislative action, was properly described, in 1758, by
the expression " ^ disposer de " — " to dispose of."
Vattel's definition of the right of the depositary of the
supreme power in the state is called ** classic " by the
editor of the great French Encyclopaedia of Law (Dalloz,
Ri*pcrtoirc de Ligislation^ de Doctrifie, et de Jurisprudence).
The verb disposer (our word " dispose **) and the ex-
pression disposer de (our expression " dispose of ") carried
with them the idea, brought over from the Latin word
** dispono," of conforming things to a certain order in
the ends of propriety and justice, and implied that in
each case there was some orderly and proper course of
action, as contradistinguished from all other possible
courses, and that the person who ** disposed of " the par-
ticular case occupied himself with ascertaining, either
from expert knowledge or by a new investigation, the or-
derly and proper course, and, having discovered it, ap-
plied it in the particular case. His action was called a
French Administration, 1 600-1 787 15
" disposition of " the matter. He ** disposed of " prob-
lems of motion or action; he " disposed " things or ac-
tions by setting them in their proper order.
The word disposer and the expression disposer de were,
therefore, those which were peculiarly appropriate to ex-
press the exercise of supreme power which was required
by the Constitution to be exercised expertly. They had
no reference to the extent or the sphere of the power.
The sphere or extent might be small or great, with
specific limits or with indefinite. If the power within the
sphere of action was exercised expertly, it was regarded
as disposition. Distinguished from disposition was ligis-
lation^ which implied the making of commands accord-
ing to the mere will of the depositary of the supreme
power — that is, without the recognition of any condition
as to the manner of the exercise of the power. The
word juridiction was more commonly used to describe
supreme power exercised by way of disposition, and
quite properly, when the literal meaning of the word —
** the declaring of the right in the particular case " — is
considered. The supreme power exercised within the
state was spoken of as Juridiction^ as distinguished from
the supreme power exercised outside the state and with
reference to international questions, which was called
souverainiti. The word juridiction was used to express
the exercise of the power, the word disposition to describe
the power itself. The King in exercising the power of
disposition was said to have juridiction over the land and
things concerning the transfer of which, and the persons
concerning the actions of whom, disposition was made.
The French for many centuries past have commonly
used the expression les dispositions des lois, where we
should say " the provisions of the laws.** -Doubtless
both expressions are relics of the conception of the moral
obligation attached to the exercise of the supreme power
requiring that it shall be exercised not according to mere
1 6 The Administration of Dependencies
will, but according to principles carefully ascertained and
properly applied.
Although the legislative acts of the King, as compared
one with another, were classified as ordonnances^ which
were fundamental laws or laws of great importance, ^dits
(edicts), which were acts of ordinary legislation to meet
changing circumstances, and declarations (declarations),
which were interpretations or explanations of existing
laws, they were all called, as distinguished from the acts
of subordinate officers and tribunals, ordonnances. All
acts of subordinate officers and tribunals were called
rigUments (regulations). Dispositions made by the
King usually related to matters of public concern,
while those made by subordinate officers and tribunals
usually related to matters of private concern — that is,
directly affected individual life, liberty, or property.
Hence, in process of time, the acts of the King relating
to matters of private or particular concern came to be
called riglements ; and thus the acts of the King became
divided into two kinds, ordonnances and rigUments.
The power of disposition of the King extended, of
course, to everything that was recognized as within the
power of the State. The King, therefore, "disposed of *'
what Vattel called "the domain " and "the empire" of
the State. Dispositions of the domain were the partition of
unoccupied land for the purpose of settlement and deter-
minations of the right of partition or ownership of settled
lands ; and, as the domain included the power not only
over the land, but of every product or division of the
land, the disposition of it included power over all private
property exercised by way of seizure for public use
(expropriation), or for the support of the government
(taxation)/ Dispositions of the empire were the parti-
tion of governmental power over the actions of persons
to officers, tribunals, and subordinate governments of
municipalities and administrative districts. The Local
French Administration, 1600- 1787 17
Assemblies were called ParUments (Parliaments), Cours
(Courts), or Conseils (Councils), and were consultative and
advisory bodies only, with the right to offer criticism, re-
monstrance, or protest against any proposed disposition
by way of ordonnance or r/glement before registering it on
their journals, but not to obstruct the execution of a law
after the King had heard and acted upon the remonstrance.
The power of the King over the dependencies seems
never to have been doubted, and it was considered to be
subject to the same moral obligation as in France itself.
Thus, M. fimilien Petit, writing in 1778, when the ques-
tion as to the character and extent of the power of the
metropole over its dependencies was the burning ques-
tion of the day, carefully refrains, in his Dissertations sur
le Droit Public des Colonies Francoises ^ Espagnoles et An-
gloiseSy from claiming unlimited and unconditional power
for the King, but contents himself with specifying what
the King may do in the dependencies. He says :
The government of the French colonies is entirely in the
hands of the King. To his Majesty belongs the command of
the military and naval forces ; the nomination of local admin-
istrators, governors and intendants; the choice of judges and
provision for them ; the determination of the respective powers
of officials; the defence and protection of the colonies; the
power to cause their inhabitants to dwell together peaceably
and religiously; the maintenance of their governments; the
security of their commerce; the reformation of judgments
rendered by administrative officials or by local councils; and
the power of ordaining or permitting the levy of taxes.
These objects of the exercise of the sovereign authority by
our Kings are announced to the colonists by the regulation of
167 1, by the edict of 1674, and by subsequent laws regarding
the administration and government of the colonies, derived
from these two ordinances.
The Constitution and laws of France were regarded as
in force in the dependencies except in so far as they were
1/
1 8 The Administration of Dependencies
rendered inapplicable by the local circumstances and con-
ditions. The King, in his expert management of the
dependencies, took care to see that this principle was
enforced, and the difficulty and delicacy of the problems
growing out of the adjustment necessitated by the appli-
cation of this principle were fully recognized — ^the great-
est statesmen of the time giving their personal attention
to the subject. Richelieu and Colbert, for instance, dur-
ing the seventeenth century, devoted a great part of
their eminent abilities to the solution of colonial prob-
lems, with the result that the connection between France
and its colonies was kept harmonious, that the relation-
ship was at the same time profitable to it and beneficial
to them, and that France attained to a high position
among the powers of Europe.
In the beginning of French colonization, this process
of adjustment between France and its dependencies
was clearly apparent. The original French colonizing
schemes took the form of the creation of companies by
royal ordinance for the purpose of transporting persons to
the region to be colonized and developing its resources, the
consideration for their agreement to transport being the
grant of large tracts of land which they were at liberty to
sell to the colonists. The companies were legally located if
in France and were as much subject to the Constitution,
laws, and customs of France in carrying on their business
as were any other corporations of the Realm. From the
necessities of the case, they were given jurisdiction over
the soil, things, and persons within the colony, sufficient
to enable them to keep order and to protect the settle-
ments from attack. Sometimes a representative of the
King in the colony was provided. The revenue from
the mere sales of land proving inadequate, there was sooni
granted to these companies the monopoly of buying the!
products of the colonies and of selling them in France.
From these grants of the privileges of government
French Administration, 1 600-1 787 19
and of monopoly, these companies were called ** priv-
ileged companies ' ' {compagnies priviUgUes).
The charters, and hence the privileges, were usually
granted for a term of years, and at the expiration of the
term the King was at liberty to resume the powers
granted or to grant them again on the same or other con-
ditions, so that, from time to time, adjustments were
made in which the respective interests of France and the •
dependencies were considered.
Later, when the monopolies began to grow very valu-
able, and the colonies began to complain of enriching '
private individuals when the services of protection for
which they were demanding tribute were really performed %
by the French Government, the charters were not re-
newed on their expiration, and the French Government *
substituted itself to all the rights and obligations of the >
colonizing company and took the whole disposition of *
the property and affairs, formerly administered by the-
company, into its hands. Thus, after this change, there
was still no question but that the Constitution, laws, and
customs of France were in force in the colonies to the ex-
tent that they were not rendered inapplicable by local
circumstances and conditions. The theory of the French
Government that all governmental power was to be exer-
cised expertly and scientifically stood France here in
good stead. The adjustments and readjustments be-
tween the French Constitution, laws, and customs on the
one hand and the local circumstances and conditions on
the other were made judiciously and advantageously.
The chief need of the colonies was physical protection
against outside interference, not only from the native
tribes, but from civilized foreign States. The cost of such
protection was much more than it would have been had
the colony been an integral part of France. The method
of collecting payment for such protection by process of
taxation which prevailed in France was impracticable for
20 The Administration of Dependencies
many reasons, and so it was considered equitable that
this extra expense should be compensated for by indi-
rect taxation by way of imposts. Certain obligations
were therefore imposed on the dependencies calculated
to return to France indirectly this extra expense.
|Thc trade between France and its dependencies was
•treated as coasting trade and obliged to be carried in
f French vessels, thus allowing the French ship-owners to
make an extra profit. The manufacturing by the colo-
^nists of their raw materials was forbidden, and this man-
ufacture was required to be done in France, thus giving
• French manufacturers an extra profit in this way, and
the colonists were forbidden to buy anything which could
^ be manufactured in France except from the French man-
ufacturers, thus giving them a profit in another way.
• The colonists were obliged to sell all their products in
France, and the whole French people thus enabled to de-
^ rive a profit by the saving in price over that which it would
have been had the colonists been able to sell in the dearest
I market ; but, in order that the colonists might have the
best chance possible in the French market, they were given
' an advantage with their products over foreign States by
^differential duties imposed against the foreign products.
All this complicated adjustment, necessitated by the
fact that the Constitution, laws, and customs of France
regarding taxation were inapplicable by reason of the
local circumstances and conditions, was given the name
^of "the colonial pact " {le pacte colonial). Because it was
a system of mutual restrictions to some extent, and be-
cause it involved the doing of something on the one side
and the doing of something on the other in return, the
arrangement has some of the outward form and appear-
ance of a contract, but it was never inferred from this re-
semblance that the powers of France over its dependencies
were rights growing out of a treaty or an express contract
between them. The "pact," so-called, was really the
French Administration, 1 600-1 787 21
recognition of a mutual obligation growing out of an
established relationship. The expression, "the colonial
pact,*' implied that the mutual restrictions and obliga-
tions were such as arose from the definition of the terms
of the relationship, and grew out of the balancing of the
respective interests of the parties — the Constitution, laws,
and customs of the Imperial State on the one side against
the local circumstances and conditions of the depend*
encies on the other.
The principle of "the colonial pact" was evolved by
France after a long and extensive experience in the ad-
ministration of dependencies. The French Colonial
Empire of the seventeenth century was as wonderful for
its day as is the British Empire for the present time.
Between 1603 and 1664, privileged companies were or-
ganized for the colonization of Canada, Acadia, Sumatra,
Java, Molucca, the East Indies, Madagascar, Guinea, and
Africa. Between 1664 and 1718, similar companies were
organized on expiration of the former charters, for colo-
nizing and exploiting the East and West Indies, Senegal,
Guinea, Acadia, San Domingo, the Hudson's Bay region,
China, and Canada. Many of these ventures came to
nothing, but, on the other hand, some succeeded. In
1750, the Colonial Empire of France included Canada,
Acadia, Louisiana, several islands in tltt West Indies,
Guiana, Senegal, and a number of islands near Africa
and Australia. The French Colonial Empire of 1750 is
said to have included a region four million five hundred
square miles in extent.
A theory developed out of this enormous and diversi-
fied experience by a State having so just and moderate a
conception of the character and extent of governmental
power is certainly deserving of serious and careful consid-
eration. When closely examined, it is to be noticed that
by the use of the word ** pact" to describe the bond be-
tween France and its dependencies, it was necessarily
22 The Administration of Dependencies
implied that the dependencies were legal and political
persons — that is, States — distinct from the State of
France, since a pact, like every other form of contract,
necessarily implies two persons, as parties to the con-
tract, each of whom is capable of contracting. It was
implied in the whole expression, "the colonial pact/'
that the terms of the relationship were such that the
stronger party recognized itself as under a moral obliga-
tion to the weaker party to see that the relationship was
on the same terms as if they had been equal in strength,
though it was to judge what such terms ought to be.
The conception of the relationship between France and
its dependencies as one arising out of a "pact " was there-
fore a conception of the dependencies as States in a fed-
eral union with the State of France.
According to this theory, there existed an implied
contract between the Imperial State and its depend-
encies, which determined the relations between, them,
and according to which the Imperial State agreed to
render services for the dependencies in the way of physi-
cal protection and political guidance, and they agreed to
pay for those services by means of restrictions on their
trade and commerce for the benefit of the Imperial State*
Just what services were to be rendered, and just what
payment was to be made for the services, the Imperial
State determined, but in making such determinations or
dispositions, it consulted the wish of the dependencies
and regarded their interests.
It has often been claimed that the theory of **the
colonial pact " was invented as a means of covering up
oppression of the dependencies by France. It seems,
however, that it was rather the conception of a wise
statesmanship, which foresaw that remote and scattered
dependencies could not in the long run be held by force,
and that they must be regarded as being to some extent
political persons, or States, in a relationship with France
French Administration, 1 600-1 787 23
resembling a federal union.
As the French Colonies developed to a point where
their populations were capable of expressing their will in
an organized manner, they were given the right to have
Local Councils, of the same kind as those of the Provinces
of France itself, whose advice was carefully considered
by the King and his Council before any acts of the King
became final.
The same author from whom we have quoted above,
M. l^milien Petit, in his Droit Public ou Gouvernement
des Colonies Frangoises^ published in 1771, gives many
examples of French colonial charters and commissions in
which the duty of the colonists to observe the ordinances
and regulations of the King and the judgments of the
courts in accordance with the custom (common law) of
Paris is stated, but in which it is recognized that the
local circumstances and conditions of the colonists are
entitled to be considered. He shows that where colonies
were given the right to have Local Councils, these Coun-
cils had the right of remonstrance against ordinances or
regulations proposed by the King, of substantially the
same kind as the Local Councils or Parlements of the
Provinces of the Realm, one of the grounds of remon-
strance permitted being "that the proposed law would
cause inconvenience."
The great part of the French Colonial Empire was lost
in the war with England between 1756 and 1763. French
India became British India and French Canada became
British Canada in 1756 and 1757, and the conquests were
secured to Great Britain by the Treaty of 1763 — Louisiana
passing by cession, at the same time, to Spain. The
loss of the Colonial Empire was due to the weakness of
France itself caused by the denial to the people of the
expression of the popular will which had been allowed
under the traditional Constitution, and was not in the
least degree due to the theory or practice in the adminis-
1/
24 The Administration of Dependencies
tration of its dependencies. French colonists were loyal
to France and French methods in India were adopted by
the British. The underlying principles of "the colonial
pact'* were sound. Colonies connected with France by
"pact** occupied a dignified position in the political
world. As to them, France was a State to some extent
foreign, which was their Sovereign, under obligation to
protect and guide them by its ordinances and disposi-
tions, but -at the same time under obligation not to act
except as might be necessary for these purposes.
CHAPTER II
ENGLISH ADMINISTRATION, 1584-1606
WILLIAM THE CONQUEROR, in 1066, brought
with him into England the French theory of
governmental power. In his coronation oath,
he promised among other things:
To rule over the whole people subject to him justly and
with royal providence: to enact and to preserve right law, and
strictly to forbid violence and unjust judgments.
By this oath, he recognized that the power which he
exercised was conditioned and limited, and that it was
exercised under a supreme law which it was his duty to
adjudicate and execute.
In the course of a century and a half, Anglo-Saxon
influence had predominated, and King John claimed
that the power which he exercised was unconditional
and unlimited, and that there was no law except his will.
Magna Charta, granted by him in 121 5, purported to be
a gift of privileges from him to the people of England.
The enumeration of the privileges granted was preceded
by the following words of gift and conveyance :
We have granted moreover to all free men of our Kingdom,
for us and our heirs forever, all the liberties written below, to
be had and holden by themselves and their heirs from us and
our heirs.
There was contained in this a repudiation of the theory
that the governmental power, which the King then
25
26 The Administration of Dependencies
exercised, was a power of ordinance or disposition. It
was regarded as a power of commanding according to mere
will. The people of England were regarded as subjects
of the Government of England, except in so far as it had
** granted liberties " to them.
This claim on the part of the King forced the people
of England to combine against him for the purpose of
extorting concessions from him. By 1249, during the
reign of Henry III., they had succeeded in having in-
serted in the enacting clause of all laws the statement
that they were enacted "by the authority" of the Lords
and Commons, as well as by their ''consent," thus laying
the foundation for the subsequent claim made by the
Lords and Commons, and afterwards by the House of
Commons, of absolute and unconditional power.
At the same time, the practice of the English monarchy
in exercising governmental power continued to follow
along the lines of the French monarchy. Though the
King claimed unconditional and unlimited power, he acted,
as did the King of France, by the advice of a Council com-
posed of men expert in statecraft, called the Privy Council,
who were in continuous attendance upon him, who enjoyed
his closest confidence, and with whom he advised con-
cerning every act of government. Acts of State done by
the King by the advice of his Privy Council were called
acts of the King in Council. The Privy Council of the
King thus became opposed to the Great Council of
the Kingdom, consisting of the House of Lords and the
House of Commons, but the real issue was not changed
nor greatly obscured by reason of the existence of the
Privy Council and the House of Lords, and there was a
continual struggle between the King and the House of
Commons, each claiming to be the rightful Sovereign of
England.
Queen Elizabeth's policy was to recognize the House
of Commons as an existing and necessary institution, to
English Administration, 1 584-1 606 27
endeavor to ascertain the part which it ought to play in
the Government of England as the representative of the
people, and to confine it to the sphere of action to which
she thought it properly belonged.
Her idea seems to have been that the Parliament (in
which, though legally composed of King, Lords, and
Commons, the House of Commons was the controlling
factor) ought to have only the power to negative the acts
of the King in certain cases. When the Speaker of the
House demanded, as usual, liberty of speech for the
Commons, she replied that liberty of speech they should
have, but that that liberty consisted in the privilege of
saying yes or no. She admitted that the Parliamentx
had the supreme power with respect to changing the
law, but claimed that it could not initiate legislation and
could only negative legislation proposed by her. She
also admitted that the House of Commons had full cony/
trol over the supplies.
The Parliament of Elizabeth's time was therefore es-
sentially a popular assembly with strictly limited powers.
The Queen exercised certain powers to the exclusion of
Parliament, both because it was recognized that these
powers could be better exercised by an expert body than
by a representative body elected by the people, and be-
cause Elizabeth, by her remarkable personality and
ability, had succeeded in establishing a modus vivendi
between herself and the House of Commons, by which,
in consideration that she admitted that they had a power
for certain specific purposes to supervise, and negative
her acts, they agreed for all other purposes to leave the
whole government in her hands.
Perhaps no English monarch brought out more clearly
than did Queen Elizabeth the distinction between the
King, as the expert part of the Government — the Crown
— and the Parliament, as the popular part. Under this
conception, the King, in his official capacity, was the
28 The Administration of Dependencies
depositary of all governmental power, except that which
had been appropriated by Parliament or surrendered by
Charter. Though Elizabeth recognized that Parliament
had appropriated to itself the power of changing the laws
and of raising money, and that under Magna Charta the
King was bound by the judgments of his Judges given in
causes in which the private rights of individuals were in-
volved, she, like all her predecessors, considered that all
powers which Parliament had not expressly claimed and
insisted upon were vested in her, as the Crown or Head
of the English State. As Parliament had never claimed
the right of disposition of the public lands of the State,
she regarded herself as holding the title to all lands dis-
covered, ceded, or conquered, as trustee for the State,
with full powers in the matter of disposing of them.
England of the days of Elizabeth was not without its
experience in managing an Empire. Jersey and Guernsey
had been dependencies of England at least since the reign
of King John (12 15), and had been treated as States
having their own internal life over which England exer-
cised such power as was thought necessary through the
King, who was represented in the Islands by a Governor
appointed by him. It had exercised power at various
times over many of the French and German States and
Provinces as the result of conquest. The power thus
exercised resembled rather a military occupation and
had not been treated as permanent. Ireland had been a
dependency since 1495. During the period from 1495 to
1584 the affairs of Ireland had been administered by the
King in Council, but Parliament had not invariably held
its hand. While it does not appear to have ever at-
tempted to enact specific legislation applicable only in
Ireland, it had in some cases made some laws effective
both in England and Ireland.
When the question arose of colonizing America, Queen
Elizabeth did not hesitate to take the position that this
English Administration, 1 584-1 606 29
was a subject within her power to regulate by royal
charter. It was recognized as being the function of the
King to grant charters of incorporation to inhabitants
of the Realm, to grant by charter the lands belonging to
the State, and to wield the external power of the State
in pursuance of treaty or for redress of wrong done by
foreign States. In the Charter which Elizabeth granted^
to Sir Walter Raleigh for Carolina in 1584, she recognized
the supremacy of the statutes of the Realm, but she re-
garded herself as having the exclusive power over the
whole subject of the disposition of the lands and popula-
tions in America which might by discovery or conquest^
be brought within the power of England. The Charter
gave Raleigh the title to the lands he should discover
and occupy and the power of governing them. The pro-
visions having reference to the political relationship
between England and the countries so discovered and
occupied were as follows:
And for uniting in more perfect league and amity such
countries, lands and territories, so to be possessed and in-
habited as aforesaid, with our Realms of England and Ireland
. . . we do by these presents grant and declare that all
such countries, so hereafter to be possessed and inhabited as
aforesaid, shall henceforth be of the allegiance of us, our
heirs and successors. . . .
We, for us, our heirs and successors, are likewise pleased
and contented, and by these presents do give and grant to the
said Walter Raleigh, his heirs and assigns forever, that he and
they, and every of them, shall and may from time to time for-
ever after, within the said remote lands, and countries in the
way by the seas thither and from thence, have full and mere
power and authority to correct, punish, pardon, govern and
rule by their and every of their good discretions and policies,
as well in causes capital or criminal as civil, both marine and
other, all such our subjects as shall ... at any time in-
habit any such lands, countries or territories as aforesaid
30 The Administration of Dependencies
. . . according to such statutes, laws and ordinances, as
shall be by him, the said Walter Raleigh, his heirs and assigns,
and every or any of them, devised or established for the better
government of the said people as aforesaid, . . . so always
as the said statutes, laws and ordinances may be, as near as
conveniently may be, agreeable to the form of the laws,
statutes, government or policy of England, and also so as they
be not against the true Christian faith, now professed in the
Church of England, nor in anywise withdraw any of the sub-
jects or people of those lands or places from their allegiance
to us, our heirs and successors, as their immediate Sovereign
under God.
This Charter made Carolina a Province of England,
under Raleigh as Lord Proprietor. The method of
colonization thus employed was evidently an application
of the method of disposition of the public lands which
had been employed in England for centuries, according
to which the King granted to those who had deserved
well of the State such portions of the public lands as he
thought proper, with certain rights of lordship, and the
inhabitants of the land became tenants of the Lord Pro-
prietor, who was himself a tenant of the King — that is,
of the State. The very full powers of government
granted to Raleigh over the inhabitants of Carolina were
evidently an extension of the powers (almost entirely ju-
dicial or military) of Lords Proprietors in England over
their tenants, and were evidently given, from the neces-
sity of the case, on account of the remoteness of the lands.
According to the theory of this Charter, the regions in
America to be discovered and occupied were external to
the State of England — "remote lands and countries" —
related to that State by a contractual and constitutional
bond — a "union." The power of both King and Parlia-
ment over the countries was taken for granted. The
provision that Raleigh and his successors should make
their statutes, laws, and ordinances "as near as con-
English Administration, 1 584-1 606 31
veniently may be, agreeable to the form of the laws,
statutes, government or policy of England" implied
that the remote lands and countries were political enti-
ties distinct from the State of England, whose govern-
ment was to be made as nearly as practicable like that
of England. It was implied that England would not
interfere with the inner life of these countries unless
Raleigh and his successors failed to preserve a sufficient
degree of uniformity. The power of England over the
external life of these countries was regarded as based on
the allegiance (that is, the contract) between the King
and the individual inhabitants of the countries.
The question of the character and extent of the power
which England might justly exercise over its various kinds
of dependencies was much discussed between 1603 and
1607, when King James, as King of both England and
Scotland, was trying to unite the two Kingdoms. The
hostility among the common people of England to the
Scotch was so great that the House of Commons would
not agree to the Scotch having any more rights in Eng-
land than the existing common law gave them. It was
agreed that the common law gave no rights in England
to any one born in Scotland before King James came
to the throne of England — that they were aliens until
naturalized by Act of Parliament. The question, there-
fore, concerned only those born after King James came
to the throne, who were hence called the postnaii, A
great hearing was had in Parliament in 1603, the eleven
highest judges of England sitting as a tribunal, and
members of the House of Commons arguing the case be-
fore them, some presenting the case from the standpoint
of the law of nature and of nations, some from the stand-
point of historical precedent, some from the standpoint
of civil law, and some from that of the common law.
While the case was, of course, one of mere personal
union through a common Chief Executive, as we should
f
32 The Administration of Dependencies
say now, that situation was not so apparent in those
days, when the principles of the general public law were
yet in process of formation ; and in the arguments and
opinions, the powers of the English Government over the
dependencies were fully discussed, and it was agreed, both
by the judges and the members of the House who acted
as counsel, that the power of Parliament over the de-
pendencies was the same as its power in England. In
1607, ^est ca3e was made up, known as Calvin's Case,
in which the same issues were raised. It was heard be-
fore all the high judges of England, under a practice
which permitted all to sit in cases deemed of exceptional
public importance, and the same ground covered in
the argument and opinions, and the same conclusions
reached.
While the Case of the Postnati and Calvin's Case did
not, as has been seen, necessarily involve the question
whether Parliament had power over the dependencies,
yet, on account of the solemnity of the hearings, and the
unanimity between court and counsel on that point, the
matter was then finally settled as a part of the Constitu-
tion of England. Dependencies were defined to be
"parcel of the Realm in tenure" which, after being
merged in the Realm by union and incorporation, be-
came '* parcel of England in possession " or " parcel of
the body of the Realm." ** Parliament," it was said,
might " make a statute to bind in [a dependency], if [the
dependency] were specially named, but without special
naming, it does not bind." In this statement, the Court
recognized that a dependency, from its nature, demanded
a special treatment by the State in the interests of the
State itself; and a corollary from this was, of course,
that Parliament might make special laws for the govern*
ment of particular dependencies.
This statement was made with especial reference to
Ireland, and with full consideration of the facts, which
English Administration, 1 584-1 606 33
were mentioned by the Court, that Ireland did not send
representatives to the English Parliament, and that it had
its own Lords and Commons which constituted a Parlia-
ment with the King of England or his Deputy, ** whereat
they have made divers particular laws concerning that
Dominion." The real point of the decision, though it is\
not very clearly expressed and can only be made out by
inference, is that Scotland was either a petty kingdom
subordinate to England, and subject to the will of Parlia-
ment, or was merely a foreign friendly State, and that no
community external to England could ever be constitu-
tionally related to England through the King except
as a dependency, — that equal or even unequal union with
another state could be accomplished only by express an^/
unmistakable Act of Parliament.
The power of Parliament over all the petty kingdoms
and dominions belonging to England having been thus
declared, by dictum of the highest judges of England,
the power of the King was, by their dictum, declared to
be as follows :
In the case of any Christian country under the domin-
ion of England, to which the laws of England had been
given by the King or by Parliament, the King could not
** alter the laws " any more than he could ** alter " the
laws of England, in England. This merely meant that
the King could not legislate contrary to the laws of Eng-
land so given, but that he could legislate in any way not
inconsistent with them.
In the case of countries (necessarily Christian) com-
ing to the King by inheritance, the King could not
** change " the laws of the country. ** Change," in this
connection, meant the same as ** alter " — that he could'
not legislate contrary to them, but that he could legislate
in any way not inconsistent with them.
In the case of a conquered Christian country, the laws
of the conquered country remained until the King
34 The Administration of Dependencies
changed them, which he might do at his pleasure. It
was evidently considered unnecessary by the Court to
say that the King in changing them would make them
conform, as nearly as possible, to the laws of England.
In the case of a conquered infidel country, the laws of
the conquered country were abrogated ipso facto by the
conquest, " for that they be not only against Christian-
ity, but against the law of God and of nature, contained
in the Decalogue," and the King '' by himself and such
judges as he shall appoint, shall judge them and their
causes according to natural equity . . . until certain
laws be established amongst them," that is, until Parlia-
ment made a local code or until the conquered popula-
tion organized themselves into a dependent State and
established its own local laws. The use of the word
'' judges " to describe both the administrative and judi-
cial officers in a dependency of inferior race and civiliza-
tion is noticeable. It expressed the expert and judicial
character of the power exercised by the King in the
dependencies, and emphasized the judicial character even
where the power was exercised for purely administrative
purposes.
/ As the American Colonies were all dominions of Eng-
land to which the laws of England had been given by their
charters, the principle that the King could not legislate
inconsistently with the laws of England so given to
them, or afterwards given to them by Parliament by an
Act in which they were specially named, was the only
one of the principles announced in Calvin's Case which
applied to them.
The Parliamentary hearing, called the Case of the
Postnati, occurred just three years before the first Ameri-
can colonial charter was granted. Sir Francis Bacon was
the leader of the counsel appointed by the House of
Commons to argue the case before the Judges, and in-
troduced the various counsel — among whom was Sir
English Administration, 1 584-1 606 35
Edwin Sandys — who took the different parts in the argu-
ment. It was doubtless the careful consideration then
given to the whole question of the relation of England
to all the external communities related to it, which led
Bacon to take such an interest as he did in the schemes
for colonizing America, and which enabled Sandys to
do his magnificent work as Treasurer of the Virginia
Company.
I
CHAPTER III
THE AMERICAN CHARTER OF 1606
THE American Charter of 1606, or the Virginia Char-
ter, so-called, was a regulative act for twopurgoses ;
first, to grant to certain persons, who were to settle
and reside in America and form there two political com-
munities dependent upon Great Britain,— one to be called
" The First Colony of Virginia" and the other " The
Second Colony of Virginia " — the title to the land ad-
jacent to their first settlements for a space one hundred
miles square ; and, second, to establish a Central Council in
England for the superintendence of the affairs of all the
American dependencies, and a Local Council in each
Colony to advise with the Governor of the Colony.
At the time this Charter was granted, everything was
most favorable in England for the adoption of a just plan
of colonial administration. King James had come to
England from Scotland, and was trying to consolidate
the two Kingdoms. English jurisprudence and politics
were being studied by some of the most able and public-
spirited men that England has ever produced, and the
King was, at this time, acting on their advice. The
Charter is said to have been drawn by Lord Chief Justice
Popham, who was one of the most distinguished of the
Chief Justices of the King's Bench. It doubtless was in
part the product of the mind of Sir Francis Bacon.
Mr. Hugh Edward Egerton, in his History of the
Colonial Policy of Great Britain^ published in 1897, says
that the Central Council established by this Charter was
"a new Privy Council for Colonial Purposes." While
36
The American Charter of 1606 37
this statement is correct so far as it goes, it does not
fully state the character of this Council. The Privy
Council was a purely consultative body — that is, it had,
apart from the King, no powers of administration.
Though there was nothing, and of course could have\
been nothing, in the Charter to prevent the King from
treating the Central Council established by it as a merely
consultative body and personally managing the affairs of
the Colonies, yet, if he did not choose to do so, the
Council could administer the affairs of the Colonies with-
out his concurrence, — which the Privy Council, as such,
or a committee of it, could not have done. It was there-
fore a new Privy Council for Colonial Purposes and more,,
— it was an Imperial Council and an Imperial Secretary)
of State. It was directly subordinate to the King, and
had actual administrative powers subject to the King's /
visitorial and superintending power.
This Imperial Administrative Council, called ''Our
Council for Virginia,*' in contradistinction to the Council
resident in each Colony for the purposes of local admin-
istration, which was called ** the Council of the Colony,"
was thus described in the Charter :
There shall be a Council, established here in England,
which shall consist of thirteen persons, to be for that purpose
appointed by us, our heirs and successors, which shall be
called our Council for Virginia; and shall, from time to time,
have the superior managing and direction, only of and for all
matters that shall or may concern the government, as well of
the several Colonies as of and for any other part or place,
within the aforesaid precincts of four and thirty and five and
forty degrees abome mentioned.
The Charter, 'by creating this Imperial Administrative
Council, contained a recognition of the distinction be-
tween the functions of the King acting within the State,
and his functions when acting for England as the Imperial
38 The Administration of Dependencies
State constituting the Head of the British Empire. The
underlying thought was that the existence of colonies of
England necessarily implied that England was related to
them as their Imperial State ; that the functions of the
State acting upon communities or corporations outside
itself were distinct in character from its functions when
acting upon communities or corporations within itself ; and
that the body of persons appointed to advise and act for
the King in the performance of his duties as a part of the
government of the State, when the State was fulfilling its
functions toward communities and corporations within
itself, ought to be distinct from the body appointed to
advise him when the State was fulfilling its functions
toward communities and corporations outside itself.
It is noticeable that this Imperial Administrative Coun-
cil was not limited to the superintendence of the affairs
of the two Colonies mentioned in the Charter, but was to
have the superintendence of " any other part or place
within the aforesaid precincts of four and thirty and five
and forty degrees above mentioned '* — that is to say, be-
tween the northern boundary of South Carolina as at
present established, and the present city of Eastport,
Maine, and extending westward to the Pacific Ocean.
The power was large enough to place within the charge
of this Council all the Indian tribes which should be con-
<iuered or should place themselves under the protect-
ion of England, and all settlements of foreigners which
should be conquered or should submit to dependence
on that State. Instead of being called " Our Council
for Virginia," it would more properly have been called
"The Imperial Administrative Council in Charge of the
Relations between England and the Dependencies in
America."
By the King's Orders and Instructions of November
20, 1606, the powers of the Council in England (called
**the King's Council for Virginia") were thus defined:
The American Charter of 1606 39
They shall have full power and authority, at the pleasure
and in the name of his Majesty, his heirs or successors, to give \
directions to the Councils resident in America, for the good I
government of the people there, and for the proper ordering
and disposing all causes within the same, in substance as near
to the common law of England, and the equity thereof, as
may be.
In these Instructions the word " dispose " is used with
the word ** order " as describing the power which the
Council were to exercise ** at the pleasure and in the
name of " the King, — that is to say, to describe the power
of the King.
It will be advisable, in view of the important part
which the word ** dispose " plays in the clause of the
Constitution of the United States which relates to the
administration of dependencies, and in the Acts of Con-
gress preceding the adoption of the Constitution, to
ascertain at this point the exact meaning of that word.
The word " dispose " was the word commonly used in
the public acts of the time to express the exercise of gov-
ernmental power which was held under a condition that
it should be exercised expertly and according to just
principles, just as the word disposer was the most ap-
propriate in the French language to express the same
idea. Contemporary examples of this use are the
following :
For the handling, ordering and disposing of matters and
affairs of greater weight and importance, and such as shall or
may in any sort concern the weal public and general good of
the said Company and Plantation, as, namely, the manner of
government from time to time to be used, the ordering and
disposing of the lands and possessions, and the settling or es-
tablishing of a trade there, or such like, there shall be held
and kept every year . . . four Great and General
Courts, (Charter of the Virginia Company of 1611.)
40 The Administration of Dependencies
The said Governor and Assistants shall apply themselves to
take care for the best disposing and ordering of the general
business and affairs of, for and concerning the said lands and
premises hereby mentioned to }}e granted, and the plantation
thereof and the government of the people there. (Charter
of the Massachusetts Bay Company of 1629; also Charter
of Rhode Island of 1663.)
The Commissioners shall have power and authority to pro-
vide for, order and dispose all things which they shall, from
time to time, find most advantageous for the said Planta-
tion. . . . Always reserving to the said Commissioners
power and authority for to dispose the general government of
that Plantation, as it stands in relation to the rest of the Plan-
tations in America, as they shall conceive, from time to time,
most conducing to the general good of the said Plantation, the
honor of his Majesty, and the service of the State. (Charter
of Providence Plantation of 1644.)
The said General Assembly shall have full power and au-
thority ... to elect and constitute such officers as they
shall think fit and requisite for the ordering, managing and
disposing of the affairs of the said Governor and Company,
and their successors . . . and to establish laws for the
directing, ruling and disposing of all other matters and things,
whereby our said people, inhabitants there, may be peaceably,
civilly and religiously governed. (Charter of Connecticut of
1662.)
The word " dispose '* was peculiarly appropriate to ex-
press this idea, whether it be considered from the stand-
point of its derivation or of its usage in general literature.
The first meaning of the word "dispose" is "to
place apart," and, — as placing things apart implies a pur-
pose in so doing, — to dispose objects, physical or mental,
soon came to mean to place them apart for the purpose
of setting them in some predetermined order or ar-
rangement. In military science, it is proper and usual to
speak of disposing troops, or disposing of troops, so as
to put them in a certain order or arrangement. The
The American Charter of 1606 41
•
same usage continues at the present time in the science
of architecture, where the arrangement of different parts
of a structure with reference to each other is spoken of
as the " disposition " of the different parts.
Of '* disposition " the Century Dictionary gives for the
first meaning" a setting in order; a disposing, placing,
or arranging; arrangement of parts; distribution*': as,
'' the disposition of the infantry and cavalry of an army;
the disposition of the trees in an orchard ; the disposition
of the several parts of an edifice or of figures in painting ;
the disposition of tones in a chord or of parts in a score/'
As a very ancient example of this use, it quotes the fol-
lowing from Sir T. Wilson's Essay an Rhetoric (1553):
" Disposicion is a certain bestowing of thinges, and
an apt declaring what is meete for every part, as tyme
and place doe beste require."
Dr. Johnson, in his great dictionary, published in
1775, gives the following illustration of this meaning of
** disposition " from Dryden (1680):
" Under this head of invention is placed the disposition
of the work, to put all things in a beautiful order or har-
mony, that the whole may be of a piece."
From this meaning, of placing in a certain order or
arrangement, the word ** dispose " soon came to have the
meaning'' to regulate or govern in an orderly way; to
order, control, direct, manage, command," as the new
Oxford Dictionary informs us. This dictionary gives the
following quotations, as illustrating the meaning: From
Trevisa (1398): ** Angels have under theym the orders of
men, and ordeyne and dyspose theym." From Savile
(1581): " Otho disposed the affaires of the Empire."
From Chapman (1618): ** They were such great fools
at that age that they could not themselves dispose a
family." From Milton (1667): ** Be it so, since hee
Who is now Sovran can dispose and bid what shall be
right." From Hale (1677): ** A regent principle, which
42 The Administration of Dependencies
may govern and dispose it as the soul of man doth the
body."
One meaning of ** disposition " given by the Century
Dictionary is, " guidance and control; order; command;
decree: as, the dispositions of the statute." It gives the
following illustrations of this meaning: " I putte me
in thy proteccioun, Dyane, and in thi disposicioun
(Chaucer, 1390); ** Who have received the law by the
disposition of angels" ^Acts vii. 53); *' Appoint (f. e.^
arraign) not heavenly disposition, father " (Milton, 1671).
Another meaning which the word " dispose " had, ac-
cording to the Oxford Dictionary^ was ** to make arrange-
ments ; to determine or control the course of affairs or
events; to ordain, appoint." Under this meaning is
given the proverb, " Man proposes but God disposes,"
and also a quotation from Hall's Chronicles (1548): ** To
dispose for the nedes of the foresaid realme."
Other examples of the use of the word with this mean-
ing are :
" There were in these quarters of the world, sixteen
hundred years ago, certain speculative men, whose au-
thority disposed the whole religfion of those times "
(Hooker, 1595); and " Who hath disposed the whole
world ?" {Job xxxiv. 13).
The Oxford Dictionary gives as one meaning of " dis-
posal," " the act of disposing things, or parts of a thing,
according to some method, good or bad, or the state or
manner of being so disposed ; arrangement ; order ; dis-
tribution."
In the Century Dictionary one meaning given of " dis-
posal," is, ** regulation, ordering, or arrangement, by
right of power or possession; dispensation." An ex-
ample which it gives of this meaning is the sentence,
"Tax not divine disposal " (from Milton, 1671). The same
dictionary also gives, as another meaning of " disposal,"
"power or right to dispose of or control,'* and gives as an
The American Charter of 1606 43
example : * * Are not the blessings both of this world and
the next in His disposal ? " (Bishop Atterbury, 1720).
The word ** disposer" was recognized in English and
American literature up to the beginning of the nineteenth
century as the one which was peculiarly appropriate
to characterize the Deity, thus being treated as a word
most appropriate to signify the widest and most com-
plete power, exercised for the ends of order and justice.
The Century Dictionary gives the following examples of
this use :
" Forget not those virtues which the great Disposer
bids thee to entertain" (Sir Thomas Browne, 1646);
** Leave events to their Disposer " (Boyle, 171 5).
Dr. Johnson, in his dictionary, as an example of
this meaning of the word ** disposer," gives: ** All the
reason of mankind cannot suggest any solid ground
of satisfaction, but in making that God our friend, who is
the absolute Disposer of all things." Other examples
of this same sense of the word '' disposer " applied
to human beings, given by Johnson s Dictionary and the
Century Dictionary^ are :
** Would I had been disposer of thy stars, Thou
shouldst have had thy wish and died in wars " (Dryden,
1665); " The Gods appoint him The absolute disposer
of the earth. That has the sharpest sword " (Fletcher,
1620).
Other examples of the same meaning in the derivatives
disposure " and ** dispositive " are:
In Hid disposure is the orb of earth. The throne of
kings, and all of human birth," and : ** They quietly sur-
rendered both it and themselves to his disposure"
(Sandys, 1630); " Whilst they murmur against the pres-
ent disposure of things, they do tacitly desire in them
a difformity from the primitive rule and the idea of that
mind that formed all things best" (Sir Thomas Browne,
1646); "Without His eye and hand. His dispositive
44
44 The Administration of Dependencies
wisdom and power, the whole frame would disband and
fall into confusion and ruin " (Bates, 1685).
Grotius, in his Peace and War i^ooV i., chapter iii., sec.
21), says of the distinction between the words " to dis-
pose " and '* to command " (the translation being that of
Rev. William Evats, made in 1682):
Isocrates, commending that excellent conduct of the ancient
Athenians, in the managing of their social wars, saith, that
they took care for all, without intrenching upon the liberty of
any. It is well worth our observation that what the Latins
express by the word imperare^ to command, the Greeks more
modestly express by the word raffffetv^ to dispose or set in
order.
The expression "dispose of " was used interchangeably
with the verb " dispose." In this sense, as^n the former,
it was frequently coupled with the word ** order." An
example of the use of the expression ** dispose of " in this
sense is found in the preamble of the Fundamental Orders
of Connecticut of 1638, which read :
Forasmuch as it hath pleased the Almighty God by the
wise disposition of his divine Providence so to order and dis-
pose of things that we, the inhabitants and residents of Wind-
sor, Hartford and Wethersfield are now cohabiting and
dwelling in and upon the River of Connecticut and the lands
thereunto adjoining; and well knowing, where a people are
gathered together, the word of God requires that to maintain
the peace and union of such a people there should be an or-
derly and decent government established according to God, to
order and dispose of the affairs of the people, etc.
Also in the Charter of Rhode Island of 1663 :
The said Governor and Company shall have full power and
authority ... to direct, rule, order and dispose of all
other matters and things, as to them shall seem meet, whereby
our said people and inhabitants may be religiously, peaceably
and civilly governed.
The American Charter of 1606 45
Another example of this usage occurs in the Charter of
the Province of Massachusetts Bay of 1691 :
We do give and grant that the said General Court or As-
sembly shall have full power and authority ... to dis-
pose of matters and things whereby our subjects, inhabitants
of said Province, may be peaceably and civilly governed, pro-
tected and defended.
The preposition " of," in the expression ** dispose of,"
evidently has the meaning of specifying the particular
object of the act of disposing. The Oxford Dictionary
calls attention to the fact that instances are found where
the prepositions " upon " and " on " and also ** with "
are used with the word ** dispose." To ** dispose upon "
something, or to "dispose on" something, would plainly
mean, if used to-day, to adjudicate upon something for
the purpose of determining the proper and orderly ar-
rangement in regard to it' and making the arrangement
so determined upon. To ** dispose of" something evi-
dently has the same meaning. The Oxford Dictionary
gives as the first meaning of the expression ** dispose
of," ** to make a disposition or arrangement of; to do
what one will with ; to order, control, regulate, manage " ;
and, as an illustration of this meaning, quotes from
Shakespeare, Henry V., iii., 3, 49: ** Enter our gates;
dispose of us and ours; For we no longer are defensible."
The Century Dictionary defines ** dispose of " as mean-
ing ** to exercise control over; direct the disposal or
course of: as, * They have full power to dispose of their
possessions.' " As examples of this meaning it gives
the following:
** The lot is cast into the lap; but the whole disposing
thereof is of the Lord " {Prov. xvi. 33); ** This brow
was fashion'd To wear a comely wreath, and your grave
judgment Given to dispose of monarchies " (Fletcher,
46 The Administration of Dependencies
1622); ** A planet disposes of any other which may be
found in its essential dignities " (W. Lilly, 1670).
In the original form of the word, ** dispone ," it was
used both transitively and intransitively, and the word
" of," when used with it, plainly meant ** upon, respect-
ing, concerning." This is evident from the two quota-
tions from Chaucer, given by the Century Dictionary :
** Syn God seth every thing, out of doutance. And hem
disponeth through his ordinaunce " and : "Of my moble
{i. e., belongings) thou dispone Right as the semeth best
is for to done.*'
The conception of the King as the ** disposer '* of the
affairs of the dependencies was the conception of him as
the Imperial Judge and Ruler, under a condition to exer-
cise his powers by expert advice according to just princi-
ples, and not beyond what the necessity, in each case,
required.
In the Instructions occurs a clause in which the King
declares his power in the dependencies to be superior and
the power of Parliament to be supreme, which reads :
That as the Colonies shall, from time to time, increase in
plantation, the King, his heirs and successors, will ordain and
give such order and further instructions, laws, constitutions
and ordinances as by them shall be thought fit and convenient:
Provided always that they be such as may stand with and be
consonant to the laws of England, or the equity thereof.
** Consonant to the equity of the laws of England"
meant, of course, ** not repugnant, but agreeable, as
nearly as may be, considering the local conditions and
circumstances.''
Excellent as the Charter was in the respect that it as-
sured the Colonies an intelligent fulfilment of the
functions of the Imperial State toward them, it was ob-
jectionable because it did not admit any right in the
Colonies to be treated as States for any purposes. It did
I
i
The American Charter of 1606 47
not say that they had not this right, but simply left the
whole matter indefinite. There was to be a Council in
each Colony, but how these Local Councils were to be
constituted or what their duties were to be was not
stated. This was left to future determination by the
King, presumably though not necessarily following the
advice of the Imperial Administrative Council. These
Local Councils were thus described :
Each of the said Colonies shall have a Council, which shall
govern and order all matters and causes which shall arise,
grow or happen, to or within the same several Colonies, ac-
cording to such laws, ordinances and instructions as shall be,
in that behalf, given and signed with our hand or sign manual,
\ and pass under our Privy Seal of our Realm of England; each
of which Councils shall consist of thirteen persons, to be or-
dained, made, and removed from time to time, according as
shall be directed or comprised in the same instructions.
The Ijistructions. though so careful as to the powers
of the Council in England, not only denied all statehood
to the Colony, but required the colonists for five years
to bring all their products into hotchpot, thus converting
the Colony into a mere farm or factory, out of the prod-
uct of which the colonists, as farmers or workmen, got
their living merely. The Instructions did not specify I
what was to be done after the expiration of the five years. I
Not only was statehood and private property denied, but
the President and Council were given powers without the
limitation provided in the English Constitution, even
jury trial being permitted only in certain specified
cases.
This un-English system of local administration was
naturally most galling to the colonists. They refused to
allow the President and Council to carry out the Instruc-
tions, and a state of anarchy 'ensued. It was to these
Instructions, which were a perversion of the Charter, and
48 The Administration of Dependencies
not to the Charter itself, that the unpopularity of it was
due.
This Imperial Constitutioh for the American depen-
dencies, as it might be called, containing so many ex-
cellent ideas and capable of such good results had it been
supplemented by Instructions securing to the colonists a
just share in their own government, was revoked after
being in existence only three years, and a new charter
granted on entirely different principles.
CHAPTER IV
IMPERIAL COUNCILS, l6o6-2S
THE year 1606 marked the beginning of systematic
colonization not only in Virginia, but in Ireland.
After the rebellion in Ulster in 1605, the whole Pro-
vince was practically depopulated and confiscated to the
Crown. This situation furnished an opportunity for the
English to gain a new foothold in Ireland by coloniza-
tion, and James, in his eagerness for his own aggrandize-
ment, was not slow to take advantage of it. One of the
persons who was consulted concerning the proper meth-
ods to be employed, or who at least felt at liberty to
offer his advice, was Sir Francis Bacon. That it was ac-
ceptable is shown by the fact that the King appointed
him Solicitor-General the next year. The advice so
given is preserved in the form of a tract entitled Certain
Considerations touching the Plantation in Ireland^ which,
though not dated, shows on its face that it was written
after the Virginia Charter of 1606 had been granted.
In order to appreciate the purport of Bacon's advice, it
is necessary to consider the methods of administration of
the dependencies then prevailing. Ireland, the Channel
Islands, and the Isle of Man, were each administered by
the King in Council through a royal Governor assisted
by a royal Council, with the concurrence of an Assembly
representing the people. The Governor of Ireland was
called the King's Deputy or Viceroy, it being thus recog-
nized as a petty kingdom, that is, a State which had for-
merly been a Kingdom, but which was now a dependency,
49
52 The Administration of Dependencies
colonization, at that time, had to be carried on. Emi-
gration was then a new idea, and when it was broached,
the dangers of the enterprise deterred all except those
persons of small means who were willing to undergo the
risk in order to better their financial condition, or who
were influenced by religious or missionary motives. Such
emigration had to be encouraged by pecuniary assistance.
King James had not money enough to pay for the lux-
uries he insisted upon having. The House of Commons
could not be asked to grant taxes for colonization pur-
poses,— to be expended, necessarily, under the King's
supervision, — when it was already objecting to his re-
quests for money. It was necessary, therefore, to adopt
a plan which would attract private contributions. There
were two classes of persons who would be likely to be in-
terested In colonization, — ^one made up of those who had
capital to invest for the sake of profit, and the other of
those who were willing to contribute for the public good
or for religious or missionary reasons, without regard to
return or profit. The character of colonial administration
had, as it then appeared to Bacon, to be adjusted to the
existing circumstances so as to allow capitalists and re-
ligious and missionary enthusiasts to share in it with the
public authorities. This required that the enterprise
should be partly private and partly public, and the form
which naturally and inevitably suggested itself for the
purpose was that of a guild or privileged private com-
pany, the members of which, when it was organized for
objects external to its own membership, were called
** undertakers."
Although privileged private corporations are little
known at the present day, being used almost entirely for
colonizing operations in uncivilized regions, they were
very common at that period, and their rights and status
were well and even commonly understood. The guilds
practically controlled the city of London. The accepted
Imperial Councils, 1606-25 53
definition of a guild is/' a voluntary association for mutual j
protection, for common mercantile aims, or for religious |
worship." In the mercantile guilds of the fifteenth*
sixteenth and seventeenth centuries, these three objects
were combined. The chara.gteristic of a guild was that it
might admit or exclude any persons it saw fit. It was
this characteristic which distinguished a guild from a
municipal corporation. A guild could not exercise any
jurisdiction outside its own membership except by way
of protection of its members. By grant from the King
or the Parliament, it could, however, receive any gov-
ernmental privileges whatever, but it did not, by so do-
ing, lose its power to admit persons to the freedom of
the company and exclude persons from its freedom.
The members of the guild were called "brethren" or
*' freemen"; its meetings were called "Courts." The
officers were originally elective by the members, and were
called by various names — the head officer being more
usually called " the Master " and his Council being called
" Wardens." The law-making body was composed of the
Master and Wardens and representatives of the whole
membership called "Assistants. " The meetings at which!
all the guild-associates were present, as, for instance, fori
the purpose of election of officers, were called " the Gen-i
eral Courts. ' ' The English mercantile and trading guilds
organized for colonizing purposes were exactly like the
French privileged companies which began to be formed
at about the same "time. Any governmental privileges
conferred by royal charter to exercise jurisdiction be-
yond the membership of the guild were, in contemplation
of law, held at the will of the King, and could be re-
sumed by him at any time without his showing special
cause, and the long continuance of the guilds in the use of
these privileges did not interfere with the King's rights.
It mattered not with how great governmental privi-
leges they were endowed, they were essentially private
54 The Administration of Dependencies
corporations and, in the exercise of their governmental
privileges^ were under the immediate control of the offi-
cers of the district, province, county, or municipality in
which they were situated. They could exist without in-
corporation, but could not hold real estate till they were
incorporated.
The guild, endowed by royal charter with limited gov-
ernmental privileges, was a convenient instrumentality
for the management of colonizing operations which re-
quired the raising of money by private subscription, even
when the freemen of the guild elected its presiding officer
and board of directors, since, in case of contumacy or
mismanagement, the King could immediately resume all
the governmental powers which it held in trust. When
the King appointed the board of directors of a guild, as
James I. did whenever he could after his contests with
the people began, his control over it was, theoretically,
complete. The great London guilds succeeded in keep-
ing the election of their governing boards in their own
hands, in spite of all efforts to the contrary, for many
years after the granting of the Virginia Charters.
I When the Virginia enterprise was reorganized in 1609,
the new organization was, therefore, given the form of a
I guild. That this should have been done appears the
more natural when it is remembered that the Virginia
Company of 1609 and the Ulster colonization scheme
of the same year were both, under the precept of the
King, promoted and very largely contributed to by the
London guilds, and that of the seven hundred and
twenty-eight persons and corporations (among them Sir
Francis Bacon) named as " adventurers " of the guild in-
corporated by the name of " The Treasurer and Company
of the Adventurers and Planters of the City of London,
for the First Colony in Virginia," fifty-six were London
guilds.
The Charter of 1609 followed the usual form of guild
Imperial Councils, 1606-25 55
charters. It created a private corporation, located in
England, to own land and carry on farming and trading
operations in Virginia. The Imperial Administrative/
Council and the Council in Virginia created by the!
Charter of 1606 were both abolished, as it was quite 1
within the discretion of the King to do, since no private
corporate rights had been created by that Charter. The
whole enterprise, theretofore public, became essentially
private, but with a public aspect.
It was, of course, entirely consistent with the manage-
ment of the colonizing, trading, and missionary operations
in Virginia being in the hands of a guild, that there
should be a Council in England for Virginia, wholly pub-
lic in its nature and distinct from the guild, though con-
taining among its members " undertakers " of the guild ;
and this is evidently what Sir Francis Bacon meant when
he recommended, in reference to the Ulster Colony, that
"some of the principal undertakers" should "be ad-
mitted of" the Council in England for Ulster. Thel
Charter of 1609 went beyond this, and provided a Coun-
cil in England for Virginia which was wholly composed^
of ** undertakers" in the enterprise.
The Board of Directors of the guild was composed or
fifty-two persons and was called " Our Council for the
Company of Adventurers and Planters in Virginia." It
was appointed by the King and was self-perpetuating./
All the members of the Council were adventurers in the
Company — that is, those who held the Company's ** bills
of adventure." It was both a Board of Directors for the
private Company and the Imperial Administrative Coun-
cil in Charge of the Affairs of Virginia. Among the
members of this Board were the Earl of Southampton,
Sir Francis Bacon, and Sir Edwin Sandys. The Charter
proceeded upon the assumption that there would be Gen-
eral Assemblies or General Courts of the whole member-
ship of the Company which would control the Council in
56 The Administration of Dependencies
its legislative action, but made no special provision for
the summoning of such General Courts.
The Company had power to admit or expel members,
to refuse admission as freemen to any persons considered
undesirable, and to exercise jurisdiction over those per-
sons who were on the land granted to the guild and who
were not freemen of the Company, as if they were its
servants. The Charter, like those of the guilds of the
Realm, proceeded on the assumption that the Company
was subject to all laws of Parliament, all orders and
regulations of the Crown, and all regulations of any
municipal organization which should be instituted by
the King or Parliament for the local government of the
region in which the Company was allowed to cany on
its operations. It was given power to govern the English
colonists
according to such orders, ordinances, constitutions, directions
and instructions, as by our said Council shall be established;
and in defect thereof, in case of necessity, according to the
good discretion of the said Governor and officers respecmdj;
, . « so alwa3rs as the said statutes, ordinances and pro-
ceedings, as near as conveniently may be, be agreeable to the
Uws, statutes, government and policy of this our Realm of
England*
The Governor of the Colony appointed by the Council
of the Company was given the powers of a Lotd-Lieuten-
ant in a county of England. The Council was still called
"Our Council '''' — that is, the King's Coundl — and its acts
were, theref ore« thecHeticaUy, the acts of the Kiog.
The srs^em pn>vided by the Charter of 1609 proved an
utter failure. The Council appointed by the King was
ineffective and unsatisfactcrr to all concerned, aad aflier
a sbcm time it became evident that another pba voald
have to be adopted.
The Virginia Charter of 261 2 vas granted pntifap ia or-
Imperial Councils, 1606-25 57
der to extend the jurisdiction of the Colony so as to in-
clude the Bermuda Islands, but principally because of
the mismanagement of its affairs. The London guilds\
which were adventurers evidently insisted that the Com-
pany should be given the same powers of self-government
as they had, and were successful, so that the freemen of
the Company were given full power of managing all its/
affairs.
In the Charter of 161 1, the words appropriate to guilds
are uniformly used. Those who had become adventurers
in the Company since the granting of the Charter of
1609 were declared to be ** brethren and free members
of the Company." The business meetings of the Com^
pany were called " Courts," and these courts, as in the
case of guilds, were divided into Ordinary Courts and/
General Courts. The Ordinary Courts were to be held
fc ■■ - ■ • •
as often as the Company might think proper, and to con-
sist of the Treasurer, any five or more members of the
Council, and any fifteen of the freemen of the Company,
The General^jcuirts were to consist of the Treasurer and
all the' freemen of the Company and were to be held four
times a year on the next to the last Wednesday of the
Hilary, Easter, Trinity, and Michaelmas terms, and to
be called *' The Great and General Courts of the Council
and Company of Adventurers for Virginia." The Ordi-
nary Courts were to have a superior jurisdiction, being
granted power
''for the handling and ordering and dispatching of all such
casual and particular occurrences and accidental matters, of
less consequence and weight, as shall from time to time hap-
pen, touching and concerning the said Plantation."
The General Courts were to have a supr^ixifi.4>uisdic-
tion, being granted power
for the handling and disposing of matters and affairs of greater
weight and importance, and such as shall or may, in any sort.
5^ TtjC AdmimsiraixHi of
*.<
To OT'dala aa^ make sadEi Lnn aad <ydmanras for tte fiood
at&id veHare of tiie nad Plastarkm as to tbesn, fraoB tasie to
tijQbt, «bjul be thcn^tt reqnistc aad meet: So alniv as ibc
vab0: l*e sec cootruj to tiae lavs and siaiiiirs of dus
lUaJja <^ Engjand*
/ In addition to this full grant of legislative poveis orer
the Colony, the power of appointing the Governor and
other officers to manage the local affairs of the Colony
was taken out of the hands of the Coondl and vested in
the Company assembled in General Court; so that the
whole Company, so far as it was granted governmental
powers, was the deputy of the King, for the time being,
to administer both the English interest in the Colony and
the Colony itself, subject to the right of the King to with-
draw the commission at any time, and substitute another
form of agency. Its " Courts" were *• the Council in
England for Virginia," the so-called ** Council" of the
Company being simply its Board of Directors.
The Colony in Virginia languished under the bad and
arbitrary management of the " Courts" of the Company,
abusing their powers as the de facto Council in England
for Virginia, until 1619, when Sir Edwin Sandys, one
of the great lawyers and patriots of England, was elected
Treasurer (/. e.^ President) of the Company. He was as-
sisted by the equally public-spirited and capable Earl of
Southampton. By the influence of these two men and
their friends in the Company, the Courts of the Company
performed the functions of a true Council in England for
Imperial Councils, 1606-25 59
Virginia, and a most satisfactory administration was
given to the Colony. The functions of the Courts, as the]
Council in England, were separated from the functions'
of the Local Government and each confined to its proper!
sphere of action. The consent of the King was after a
time secured to the admission of this principle, and on
August 3, 162 1, the General Court, by the King's con-
sent, granted to the freemen of the Colony, then called:
burgesses, the right to participate by their Representa-
tives in the management of the affairs of the Company,
by an ordinance entitled " An Ordinance and Constitu-
tion of the Treasurer, Council and Company in England,
for a Council of State and General Assembly." By this ^
Ordinance, a Council of State in Virginia, appointed by
the Company in England, was created, which was the
Privy Council of the Governor. The Governor in Council
was given full governmental powers except that he could
not act contrary to the expressed will of either the General
Assembly of the Colony, the General Court of the Com-
pany, the King in Council, or Parliament. 'TheJ^gaeial
Assembly, which consisted of the Governor, the Coun-
cilTand Representatives from every ** town, hundred or
particular plantation," was the General Legislature of the
Colony. It was permitted to hold only one session in
each year, except on occasions of emergency, and was
given full powers of legislation except that it could not
act contrary to the expressed will of either the General
Court of the Company, the King in Council, or Parlia-
ment.
This Ordinance did not purport to be granted under
the terms of the Charter, but by special authority from
the King — * by authority directed to us from his Majesty
under the Great Seal." It was a strictly political instru-
ment, having no characteristics whatever of a guild char-
ter, and on its face negating the possibility of its ever
being claimed to be such, since it included all inhabitants
N- I r.
6o The Administration of Dependencies
of the Colony, present and future. It was not only an
Ordinance^ but a Constitution, since it showed on its face
that the arrangements which it made were intended to
be permanent. It recognized the Courts of the Company
as the Imperial Administrative Council for Virginia. The
legislative acts of the Company were called " Orders of
Court," following the practice when the Council for Vir-
ginia existed, the acts of which were called " Orders of
Council. ' ' The most remarkable part of this Ordinance is,
however, the arrangement by which, after the govern-
ment of the Colony should be settled, no law or ordi-
nance enacted by a Court of the Company was 16 be
valid in Virginia unless ratified by the General Assembly
/of the Colony. As none of the acts of the General As-
sembly were valid unless ratified by a Court of the Com-
pany, this would have left matters, after the government
was settled, so that the acts of the Courts of the Company
— that is, the acts of the Imperial Council — would have
been only co-ordinate in authority with the acts of the
General Assembly of the Colony, consisting of Governor,
Council, and Representatives, and so that all laws or or-
dinances would have had to be agreed upon by the Gen-
eral Courts of the Company in England and the General
V Assembly of the Colony in Virginia. In case of a^dead-
\ockf the King would undoubtedly have been obliged to
settle the matter by an Order in Council. The special au-
thority granted by the King to the Company to enact
this Ordinance, or Constitution, was, in effect, a complete
alteration of the plan of administration laid down in the
Charter of 1611. It was practically a return to the plan
of the Charter of 1606, according to which there was to
be an Imperial Administrative Council in England and a
Local Administrative Council in Virginia. The differ-
ences were that the King, instead of insisting upon his
right of appointing the Council in England, allowed the
whole Company, composed of persons pecuniarily in-
Imperial Councils, 1606-25 61
terested in the Colony, to act as the Council, and that he
renounced his claim of right to exclude the people of the
Colony from a just share in their local government.
The connection with England was kept through the
fact that the Governor and his Council were appointed
there, and that the Governor had the veto power; and
particularly by the follovyring. restriction upon the power
of the Local Government :
The General Assembly shall have free power to treat, con-
sult and conclude, as well of all emergent occasions concern-
ing the public weal of the said Colony and every part thereof,
as also to make, ordain and enact such general laws and or-
ders for the behoof of the said Colony, and the good govern-
ment thereof, as shall from time to time appear necessary or
requisite; whereas in all other things we require the said Gen-
eral Assembly, as also the said Council of State, to imitate
and follow the policy of the form of government, lawsjT cus-
toms and manner of trial, and other administration of justice,
used in the Realm of England, as near as may be, even as
ourselves by his Majesty's Letters Patent are required.
The years that Sir Edwin Sandys held or controlled^
the Treasurership of the Company — from 1619 to 1624 —
were the most prosperous the Company and Colony had
ever had and the most prosperous that the Colony had^
for many years afterwards. Though Sandys had, in fact,
converted the Courts of the Company into an Imperial Ad-
ministrative Council for the Colony, it was most difficult
to hold such assemblages of persons interested in exploit-
ing the Colony up to their obligations as an Administra-
tive Council. They were non-experts and made Sandys's
life a burden in trying to get him to protect or further
their short-sighted schemes of exploitation. Stith, in
his History of the Early Settlement of Virginia^ written in
1747, says:
62 The Administration of Dependencies
Although Sir Edwin Sandys was much wronged in the exe-
cution of his office, and even sought to be deterred bj threats
of blood, they could in no way turn him from a vigorous pros-
ecution and inquiry into the late disorders in Virginia.
In the performance of his duties, he even had the
King's officers prosecuted for seizing some tobacco be-
longing to the Company under orders of the King, and
was successful in having the tobacco restored. With
the Company nagging him on the one hand, and the
King opposed to him and demanding that he should not
be re-elected, he retired in favor of the Elarl of South-
ampton, but on account of his close relations with the
Earl he retained the actual control until the end of the
Company. The destruction of the settlements in the In-
/dian raid of 1622, and the forfeiture of the Charters by
the Court of King's Bench in 1624, on application by
the King, brought to an end the experiments under the
^ Charters of 1609 and 161 1. The forfeiture of the CharA
/ ters did not, of course, revoke the Ordinance of 162 1,^
which had been granted by special authority of the King,
and it was allowed to stand as the Constitution of the
Dominion of Virginia, so that that Dominion was put on
a substantial equality with the most favored of the other
dependencies of English race, and was given greater legis-
lative liberty in the first instance than Ireland had.
Necessarily, upon the revocation of the Charters, the
Imperial administrative power reverted to the King iiy
\ Council.
In 1620, James tried another experiment in the organi-
zation of a Council in England for the Colonies distinct
from the Privy Council, which exhausted all the possibili-
ties. He had started, in 1606, with an Imperial Adminis-
trative Council of small size, appointed by himself. This
was not satisfactory, because it did not attract capital. In
1609, he created a self-perpetuating Board of Directors
Imperial Councils, 1606-25 63
of a private corporation his Council for this purpose. In
161 1, he created this whole private corporation, assem-
bled in meetings or courts, his Council. In 1620, these
Councils having proved unsatisfactory, he created a "close
corporation," — that is, a small body of persons incorpo-
rated with powers of self-perpetuation, as his Council.
This he did by his charter to the Council for New Eng-
land, located in Plymouth, England, consisting of forty
persons named by the King, who were incorporated by
the name of ** The Council Established at Plymouth, in
the County of Devon, for the Planting, Ruling, Order-
ing, and Governing of New England, in America," and
were obliged to take the oath of Councillors of the King.
This Council was self-perpetuating and had full govern-
mental powers subject to the condition that its acts and
proceedings should be " as near as conveniently may be,
agreeable to the laws, statutes, government and policy
of this our Realm of England." Such a ** Council " was
an impotent body. It had no power to grant charters to
the colonists conferring governmental powers. It did
not attract capital, and, as its members were appointed
or elected for life and had to govern as best they could
without money and without help from the King, it really
never did much except to make grants of land. After
an inglorious existence, it voluntarily surrendered its
franchises to the King.
Lord Bacon, in his Essay on Plantations^ written prob-
ably about the time of the revocation of the Virginia
Charters, expressed the conclusions at which the thinking
people of England had arrived at that time. He said :
For government, let it be in the hands of one, assisted with
some counsel: and let them have commission to exercise mar-
tial laws, with some limitation. . . . Let not the govern-
ment of the Plantation depend upon too many counsellors, and
undertakers, in the country that planteth, but upon a temperate
/
64 The Administration of Dependencies
number: And let these be rather noblemen and gentlemen,
than merchants ; for they look ever to the present gain.
The result of these experiments was to convince the
English Government that a private corporation with gov-
ernmental powers was an ineffectual instrumentality for
y administering dependencies like the American Colonies,
whose populations had a will and a juridical conscience of
their own which they were capable of expressing by com-
bined action. All experiments in this direction relating
to the American Colonies practically ended in 1624, upon
the revocation of the Virginia Charters, though the Char-
ter of the Council for New England was not surrendered
until some years later.
James 1. died April 6, 162$, while a Commission to in-
vestigate the affairs of Virginia was still sitting. On May
23, 1625, Charles I., after consultation with Sandys, who
was a great friend of his and who had joined in an argu-
ment before the Commissioners in favor of a new charter
to the old Company, stated his intention in a Proclama-
tion ** to resume the government," so that
there should be one uniform course of government throughout
all our whole monarchy; That the government of the Colony
of Virginia shall immediately depend upon ourself, and not be
committed to any company or corporation, to whom it may be
proper to trust matters of trade, but cannot be fit or safe to
communicate the ordering of state affairs, be they of never so
I mean consequence.
The Proclamation stated that he intended to establish a
royal Council in England and another in Virginia. He
in fact did so, but he left the Virginians their representa-
tion in the General Assembly.
The effect of this Proclamation was to establish two
principles of the administration of the American Col-
onies: First, that, to an orderly administration it was
necessary that there should be an Imperial Council located
Imperial Councils, 1606-25 65
in England, composed of expert persons appointed by
the King, which should be a consultative body for the
King when he was exercising the Imperial power on
behalf of England, and which might also have adminis-
trative powers; and second^ that the Colonies, being
separated by distance so that they could not be incor-
porated into the body of the Realm, were to be regarded
as States for some purposes.
Ir
1
/ ^ ■
CHAPTER V
IMPERIAL COUNCILS, 1625-17SO
UNTIL the year 1750, at least, there continued to be
an Imperial Council in England for America, —
usually assisted by a referee Council, — which, with
the King, represented England or Great Britain as the
Imperial State.
' Charles I., for nine years after his accession, adminis-
tered personally the afifairs of the American Colonies,
acting with the advice of his Privy Council. Under this
arrangement, the Charter of the Massachusetts Bay Com-
pany was granted in 1629, by which the persons named in
it were incorporated as a guild or private company, hav-
ing governmental privileges but also full power to admit
^ or exclude. The officers of the guild were a Governor
and Assistants, elected by the members at a " General
Court." The members were called ** freemen." No
place was specified in which the guild should be located,
though it was granted land in New England.
In 1632, Charles I., by Charter, granted the region called
Maryland to Lord Baltimore as Count Palatine and Lord
Proprietor. The region and its inhabitants were incor-
porated by the name of ** The Province of Maryland."
The object doubtless was to keep alive, among the col-
onists, the idea of allegiance to the person of the King,
and to secure the personal responsibility of a Proprietor.
/ By Commission of April 28, 1634, Charles I. appointed
(as "Lords High Commissioners for the Plantations," the
Archbishop of Canterbury (William Laud), the Arch-
66
Imperial Councils, 1 625-1 750 67
bishop of York, the Lord Keeper, the Lord High Treas-
urer, and eight other Officers of State — thus showing
that the administration of the dependencies was re-
garded as a matter of very great importance and that
the office of Lord High Commissioner for the Plan-
tations was regarded as one of great dignity. TheseX
Commissioners constituted an Imperial Administrative
Council) and not merely a Privy Council for Colonial/
Purposes. They were given power to make laws and or-
ders for the government of the Colonies, with the King's
assent ; to impose penalties and imprisonment for ofifences
in ecclesiastical matters ; to remove governors and require
an account of their government; to appoint judges and
magistrates and establish courts; to hear and determine
all manner of complaints from the Colonies; to have|
power over all charters and patents, and to revoke those!
** surreptitiously and unduly obtained." \
This last power was doubtless given with reference to
the Massachusetts Bay Charter, under a claim that, in
moving the whole administration of the Company to New
England, an improper advantage had been taken of the
omission in the Charter to limit the location of the
Company to some place in England, and that this action
was evidence of fraudulent intent in obtaining the Char-
ter. This claim was evidently unfounded and made
without sufficient investigation, since Governor Win-j
throp states that the omission was intentional, and that'
the Company refused to take the Charter unless it were f
unlimited in the matter of location.
Under the administration of the Lords High Commis-
sioners for the Plantations, the region called Maine was,
in 1639, granted to Sir Ferdinando Goi^es as ajCounJy
Palatine and a Proprietary Province by the name of
" The Province of Maine."
The establishment of the Province of Maine, modelled)
exactly after the Province of Maryland, in which, though '
ibl^
/
68 The Administration of Dependencies
the Lord Palatine was required to act by the advice and
consent of the freeholders, he was permitted to determine
to what extent they should participate in the govern-
ment,— the one immediately north of Virginia and the
other immediately north of Massachusetts Bay, — made
the Lords High Commissioners exceedingly unpopular in
the old Colonies. In Massachusetts Bay, the antagonism
to them was increased by a judgment obtained by their ef-
forts in 1635, declaring the Charter forfeited, and by the
appointment, in 1637, of Sir Ferdinando Gorges as
Governor-General of New England. The objection of the
colonists was not, however, to the Imperial Council be-
cause it was such, but to the acts and beliefs of the men
who composed the Council.
The Commission to the Lords High Commissioners for
the Plantations was revoked in 1639, and from that time
until 1641 the troubles of England within itself and with
Scotland and Ireland made it impossible for much atten-
tion to be given to the afifairs of the American Colonies.
The administration of the Colonies reverted to the charge
of the King, who acted under the advice of ajQojiimittee
/ of the Privy. Council for Foreign Plantations.
The Lords and Commons of England, during the first
two years of their contest with King Charles, after his
flight from London in 1641, seem to have been inclined
to treat the Colonies as if they were integral parts of the
Realm. They suggested that the Colonies send repre-
sentatives to Parliament, but the Colonies refused ; and, in
1643, the Massachusetts Bay Colony and the Providence
Plantations sent Agents to England to present their mat-
ters of dispute to the Lords and Commons for disposition,
Roger Williams representing the Providence Plantations.
/ After conference between the Colonial Agents and the
leaders of the Lords and Commons, there was no more
talk of the Colonies being represented in Parliament.
They had realized that their interests lay in the direction
Imperial Councils, 1625- 1750 69
of dependence on England as the Imperial State, not in
the direction of merger with England.
The Lords and Commons, on November 2, 1643, by an\
Ordinance ** for Regulating the Plantations," appointed
a Board of Commissioners for the Plantations, which was
an Imperial Council with full powers, even to the granting
of charters. This Ordinance was the first legislative act
emanating from the English Government relating to the
American Colonies not enacted by the King in Council/
or by the King's authority. It was enacted at a time in
English history when the English Government was sanely
democratic and republican, and was in the hands of men
of eminent ability and standing. It is, for this reason,
so pertinent to the present situation in the United
States, that a quotation of it may be useful. It read as
follows, after the preamble :
The Lords and Commons, finding it *of great importance
both to the safety and preservation of the aforesaid natives
and subjects of this Kingdom, as well from all foreign invasions
and oppressions as from their own intestine distractions and
disturbances, as also much tending to the honor and advan-
tage of his Majesty's dominions, have thought fit, and do
hereby constitute and ordain Robert Earl of Warwick, Gover-
nor in Chief and Lord High Admiral of all those Islands, and
other Plantations inhabited, planted, or belonging to any of
his Majesty's the King of England's subjects, or which here-
after may be inhabited, planted, or belonging to them, within
the bounds and upon the coasts of America: And, for the more
effectual, speedier, and easier transaction of this so weighty
and important a business, which concerns the well-being and
preservation of so many of the distressed natives of this and
other his Majesty's dominions, the Lords and Commons have
thought fit, that Phillip Earl of Pembroke, Edward Earl of ^
Manchester, William Viscount Say & Seale, Phillip Lord
Wharton, John Lord Roberts, Members of the House of
Peers, Sir Gilbert Gerrard Knight and Baronet, Sir Arthur
y
70 The Administration of Dependencies
Haselrig Baronet, Sir Henry Vane Junior, Knight, Sir Ben-
jamin Rudyer Knight, John Pym, Oliver Cromwell, Dennis
i Bond, Miles Corbett, Cornelius Holland, Samuel Vassall,
John Rolls, and William Spurstowe, Esquires, Members of
the House of Commons, shall be Commissioners, to join in
/aid and assistance with the said Earl of Warwick, Chief
Governor and Admiral of the said Plantations, which Chief
Governor, together with the said Commissioners or any four
of them, shall hereby have power and authority to provide
for, order, and dispose all things which they shall from time
to time find most fit and advantageous to the well-governing,
securing, strengthening, and preserving of the said Planta-
; tions, and chiefly to the preservation and advancement of the
j true protestant religion amongst the said planters and inhabi-
tants, and the further enlargement and spreading of the Gospel
of Christ amongst those that yet remaineth there in great and
miserable blindness and ignorance: And, for the better ad-
vancement of this so great a work, it is hereby further
ordained, by the said Lords and Commons, That the said
Chief Governor and Commissioners shall hereby have power
and authority, upon all weighty and important occasions which
may concern the good and safety of the aforesaid planters, to
call unto their advice and assistance therein any other of the
aforesaid planters, owners of land or inhabitants of the said
Islands and Plantations, which shall then be within twenty
miles of the place where the said Commissioners shall then
be ; and shall have power and authority to send for, view, and
make use of, all such records, books, and papers, which do or
may concern any of the said Plantations : And because the
well-settling and establishing of such officers and Governors,
as shall be laborious and faithful in the right governing of all
such persons as be resident in or upon the said Plantations,
and due ordering and disposing all such affairs as concern the
safety and welfare of the same, is of very great advantage to
the public good of all such remote and new Plantations, it is
hereby further ordained and decreed. That the said Robert
Earl of Warwick, Governor in Chief and Admiral of the said
Plantations, together with the aforesaid Commissioners, Phillip
Imperial Councils, 1625-1750 71
Earl of Pembroke, Edward Earl of Manchester, William Vis-
count Say & Seale, Phillip Lord Wharton, John Lord Roberts,
Sir Gilbert Gerrard Knight and Baronet, Sir Arthur Haselrig
Baronet, Sir Henry Vane Junior, Knight, Sir Benjamin
Rudyer Knight, John Pym, Oliver Cromwell, Dennis Bond,
Miles Corbett, Cornelius Holland, Samuel Vassall, John
Rolls, and William Spurstowe, Esquires, or the greater num-
ber of them, shall have power and authority, from time to |
time, to nominate, appoint, and constitute all such subordi- ;
nate Governors, Councillors, Commanders, officers, and agents, «
as they shall judge to be the best affected, and most fit and 1
serviceable for the said Islands and Plantations; and shall
hereby have power and authority, upon the death or other
avoidance of the aforesaid Chief Governor and Admiral, or
any the other Commissioners before named, from time to time f
to nominate and appoint such other Chief Governor and Ad- i
miral, or Commissioners, in the place and room of such as/
shall so become void; and shall also hereby have power and
authority to remove any of the said subordinate Governors,
Councillors, Commanders, officers, or agents, which are or
shall be appointed to govern, counsel, or negociate, the public
affairs of the said Plantations, and in their place and room to
appoint such other officers as they shall judge fit: And it is ^
hereby ordained. That no subordinate Governors, Councillors,
Commanders, officers, agents, planters, or inhabitants what-
soever, that are now resident in or upon the said Islands or
Plantations, shall admit or receive any other new Governors,
Councillors, Commanders, officers, or agents whatsoever, butj
such as shall be allowed and approved of under the hands and'
seals of the aforesaid Chief Governor and High Admiral of
the said Plantation, together with the hands and seals of the
aforementioned Commissioners or any six of them, or under
the hands and seals of such as they shall authorize thereunto:
And whereas, for the better government and security of the
said Plantations and Islands, and the owners and inhabitants
thereof, there may be just and fit occasion to assign over some
part of the power and authority granted in this Ordinance to
the Chief Governor and Commissioners aforenamed unto the
72 The Administration of Dependencies
said owners, inhabitants, and others, it is hereby ordained,
/That the said Chief Governor and Commissioners before men-
tioned, or the greater number of them, shall hereby be
authorized to assign, ratify, and confirm so much of their
aforementioned authority and power, and in such manner, and
to such persons, as they shall judge to be fit for the better
governing and preserving the said Plantations and Islands
from open violence and private disturbance and distractions.
And lastly, that whosoever shall do, execute, or yield
. obedience to any thing contained in this Ordinance, shall, by
i virtue hereof, be saved harmless and indemnified.
Under this Ordinance a Charter was granted to Provi-
dence Plantations in March, 1644, which was open to
criticism, if at all, only for excess of liberality. This
Charter, after a long preamble in which the Ordinance of
November 2, 1643, was set out, read :
In due consideration of the said premises, the said Robert
Earl of Warwick, Governor in Chief and Lord High Admiral
of the said Plantations, and the greater number of the said
Commissioners, whose names and seals are here underwritten
and subjoined, out of a desire to encourage the good begin-
nings of the said planters, do by the authority of the afore-
said Ordinance of the Lords and Commons, give, grant and
confirm to the aforesaid inhabitants of the Towns of Provi-
dence, Portsmouth and Newport, a free and absolute charter
of incorporation, to be known by the name of the Incorpora-
tion of Providence Plantations, in the Narragansett Bay, in
New England, together with full power and authority to rule
themselves, and such others as shall hereafter inhabit within
any part of the said tract of land, by such a form of civil
government, as by voluntary consent of all, or a greater part
of them, they shall find most suitable to their estate and con-
dition; and, for that end, to make and ordain such civil laws
and constitutions and to infiict such punishments upon trans-
gressors, and for execution thereof, so to place and displace
ofiicers of justice, as they, or the greater part of them, shall
Imperial Councils, 1625- 1750 73
by free consent agree unto. Provided, nevertheless, that the
said laws, constitutions and punishments, for the civil govern-
ment of the said Plantations, be conformable to the laws of
England so far as the nature and constitution of the place will
admit. And always reserving to the said Earl and Commis-
sioners, and their successors, power and authority for to dis-
pose the general government of that, as it stands in relation
to the rest of the Plantations in America, as they shall conceive,
from time to time, most conducive to the general good of the
Plantations, the honor of his Majesty, and the service of the
State.
The passage of this Ordinance by the Lords and Com-
mons shows that, at the moment in the history of Eng-
land when the feeling for constitutional liberty was most
intense, and when the Lords and Commons were most
jealous of their own constitutional rights, they recognized
that, from the nature of things, they were not fitted to
administer the afifairs of the dependencies, and that it was
their duty to place this branch of government in the im-
mediate, active, and continuous control of a self-perpetu-
ating Council of experts, reserving to themselves only a
superintendence of the action of the Council so as to keep
it within proper bounds and so as to direct its policy on
questions of great national or international importance.
The Ordinance shows also that the administration of
the affairs of the dependencies was regarded as a matter
of the greatest importance and as requiring the attention
both of the most distinguished statesmen, expert in the
general art of government, and of persons who were
familiar with the circumstances and conditions of the
Colonies. Pym was the leader of the Lords and Com- 1
mons, and was interested in the Providence Islands I
Company chartered in 1630. Sir Henry Vane, Junior,
the son of the Sir Henry Vane who was one of the Lords
High Commissioners for the Plantations under Charles
I., was one of the most conspicuous men in the
! i
74 The Administration of Dependencies
Lords and Commons, and largely controlled the most
important business. He had emigrated to Massachusetts
in 1635, to avoid religious persecution. He was elected
Governor of the Colony in 1636, and gave it for a year a
singularly energetic and wise administration, when, hav-
ing ofifended the people by his advocacy of universal tol-
eration, he was defeated for re-election and returned to
I England. In December, 1643, after the death of Pym,
he became the leader of the House of Commons. The
Board of Commissioners thus contained in its member-
ship two of the greatest statesmen of the times, one of
whom had had actual experience in colonial administra-
tion. Others of the Commissioners had, through per-
sonal or family interest in the Council for New England,
the Virginia Company, and the Providence Islands Com-
pany, a knowledge of the afifairs of the Colonies. The
/^Ordinance was, therefore, in efifect, a declaration that the
transmarine dependencies of England were constitution-
ally entitled to administration through a Council of
experts located in the metropole.
At this time Charles had left London, but the Lords
and Commons still considered him as King. In appoint-
ing the Commissioners, they regarded themselves as
substituted, from the necessity of the case, to the rights
and powers of the King over the Colonies. They did
not consider themselves at that time as Parliament, since
they still believed that a Parliament could constitution-
ally exist only by the concurrence of King, Lords, and
Commons. The Board of Commissioners thus estab-
lished differed, as an Imperial Council, from that insti-
tuted by King Charles in 1634, only in the fact that
it was on a more liberal basis.
The Massachusetts Bay Colony could undoubtedly
have obtained from the Commissioners a Charter equally
as free as that of Providence Plantations, but it merely
secured from them a recognition of the Charter of 1629,
Imperial Councils, 1 625-1 750 75
and an extension of boundaries toward Rhode Island.
The power of the '* freemen " of the Company to admit
or exclude they would not yield, since only by the posses-
sion of that power could their religious discipline be
maintained.
This system of administering the dependencies con-
tinued until the establishment of the Commonwealth, in
January, 1649. One of the first acts of the Parliament
(then consisting only of the House of Commons) was to
appoint a CQundl^of State of forty -one members, to
serve as the^Executive part of the Government. This was
done by Act of February 13, 1649, which not only con-
tained the Commission to the Council, but also the In-
structions of Parliament governing its action. Among
these Instructions was the following :
You are hereby authorized to use all good and lawful means I
for the securing, advancement and encouragement of the ^
trade of England and Ireland and the dominions to them be-
longing; and to promote the good of the Foreign Plantations
and Factories belonging to this Commonwealth or any of the /
natives thereof.
When the year for which this Council was commis-
sioned expired, on February 13, 1650, the Commission
and Instructions were renewed by Act of the Parliament,
and a new Instruction added, which read :
You have also hereby power to appoint Committees or any
other person or persons, for examinations, receiving of infor-
mations and preparing of business for your debates or resolu-
tions.
On March 6, 1650, the Council of State made an order
which provided that the whole Council or any five of
them should be a Committee for the Plantations, and
in August, 1650, the Parliament passed an Act "for the
76 The Administration of Dependencies
/ Advancing and Regulating the Trade of the Common-
wealth," by which there was created "a standing Council
for the regulation of trade," which was an under-Council
for the afifairs of the Colonies. This Council was known
as "the Council of Commerce."
One of the Instructions given by the Act required the
Council :
/ To advise how the English Plantations in America or else-
where may be best managed ; and how the commodities thereof
may be so multiplied that those Plantations alone may supply
the Commonwealth of England with whatsoever it necessarily
..wants."
The Parliamentary History says of this under-Council
for Trade :
These Commissioners were empowered not only to receive
proposals from any persons of experience and ability in matters
of trade, but had also authority to send for the officers of the
Exchequer, Mint, Customs and Excise, for their assistance;
also to view all books, records, &c., for their further informa-
tion ; and the result of their inquiries, with their opinion there-
upon, was required to be laid before the Parliament or Council
of State.
Under this arrangement. Parliament declared the
American Colonies to be "subordinate and dependent
upon England" (in the Act of October 3, 1650, **for
reducing Barbadoes and Virginia"), and, on October
: 19, 165 1, passed the first Navigation Act, restricting the
trade of the Colonies to England. The establishment
of the Council of Commerce evidently had the immediate
efifect to lead to a distinct understanding and statement
of the relation of the Colonies to England, and to cause
the adoption, by the Council of State and the Parliament,
of a strong and definite colonial policy.
The Instructions to the Council of State above quoted
were repeated in the Instructions given by Act of Parlia*
Imperial Councils, 1 625-1 750 11
ment of November 30, 1652, and also in the Act of the
Little Parliament of July 9, 1653.
On December 16, 1653, the Council of State was abolA
ished, and there was substituted for it, under the In-
strument of Government, the Lord Protector's Council,
composed of not less than thirteen nor more than twenty/
one persons. This Council, with the Lord Protector,
formed the Imperial Council, the Lord Protector being
granted "the chief magistracy and the administration of
the government over the Commonwealth of England,
Scotland and Ireland, and the dominions thereunto be-
longing, and the people thereof," which power he was to
exercise with the assistance of his Council, — "assistance "
being defined by a subsequent clause in the Instrument
of Government which gave the Lord Protector power
"to govern the said countries and dominions in all things
by the advice of the Council and according to these pres-
ents and the laws."
The Council for Trade appointed by Parliament con-
tinued to exist as an under-Council for the Lord Pro-
tector's Council until Cromwell dissolved Parliament on
January 22, 1655.
On March 2, 1655, the Lord Protector's Council ap-
pointed from its own number a Committee for the For-
eign Plantations, and on November i, 1655, the Lord
Pfdfector, by an Ordinance in Council, constituted a
"Council^ of C-Qnunerce,'* consisting of forty persons,
among whom, as the Parliamentary History states, were
Cromwell's son Richard, the Commissioners of the Great
Seal, all the members of the Council, the Judges, several
Sergeants at law, and Aldermen of London, York, Bristol,
Newcastle, Lynn, Yarmouth, Dover, Southampton, and
Exeter. Any seven members were to constitute a
quorum.
The Parliamentary History thus describes the powers
of this Council :
78 The Administration of Dependencies
The Council were authorized to take into consideration all
ways and means for advancing, encouraging and regulating
the trade and navigation of the Conunonwealth; for which
purpose they were empowered to receive such propositions as
should be made to them, and to send for the officers of the
Excise, the Customs, and the Mint, or such other persons
whom they should deem capable of giving advice upon this
subject. They were to examine the books and papers of the
late Council of Commerce, and all other public papers which
might afford them necessary information. Whatever proposals
were laid before these Commissioners which they judged to be
for the advantage of trade and commerce, were to be certified
to the Lord Protector and his Council, who were to give the
necessary orders therein.
It appears also that a similar Council for Trade was
appointed by Parliament on March 4, 1657, which was
a referee body for the Lord Protector's Council, in mat-
ters relating to trade and plantations.
After the acceptance by Cromwell, on May 25, 1657,
of the Petition and Advice, the relations with the Colo-
nies remained in charge of the Lord Protector in Council
(the Council being given the old name of the Privy
Council), until Cromwell's death on September 3, 1658.
After Parliament had deposed Richard Cromwell, it
placed the Executive part of the Government again in the
hands of a Council of State. This Council of State con-
sisted of thirty-one persons, any nine of whom (six of the
nine being members of Parliament) constituted a quorum.
Among the Instructions given by Parliament to this
Council of State were the following:
You are to try to advance the trade in England, Scotland
and Ireland, and promote the good of our Foreign Plantations
and Factories, and watch the State's interests in foreign parts.
You are to consult on matters of public concernment, and
report your opinion to Parliament.
Imperial Councils, 1 625-1 750 79
You are to send for wbginever you wish to bear witness or
give advice.
You may send for any public written documents you wish
to consult, on matters in agitation before you.
You may, on emergency, administer an oath for the dis-
covery of the truth.
You may appoint committees or persons to take examina-
tions, receive informations, or prepare business for your de-
bates or resolutions.
This Council of State appointed a Committee for the \
Foreign Plantations from among its own members, which/
had charge of the relations with the Colonies.
Thus it appears that during the time England had beenV
without a King, there had been no change in that prin-
ciple of the English Constitution as it existed before the
Commonwealth, according to which the management of
the relations between England and the Colonies wa^.iiy^,
the hands of the Crown. ( \ve ^ VO^- ^V-V- ^-^^^^ ^ \
Charles II., on November 7, 1660, shortly after his res-
toration, appointed a CoundLof Trade, and, on Decem-
ber I, 1660, also appointed an Imperial Council called
** The Council Jor Foreign Plantations." This Imperial \
Council was cogaposed in part of high officials and dig-
nitaries of the English State and Church and other
members of the Privy Council, and in part of members/
of the trading guilds. It originally' consisted of forty
persons. While it had administrative powers within a
somewhat indefinite sphere, it was also an Under-Coun-
cil or Committee of Reference, which was to ascertain
the facts concerning complaints or propositions regard-
ing the Colonies, and report the facts, with their conclu-
sions, to the King in Council. The Instructions to this
Council were as follows:
1. You shall inform yourselves, by the best ways and means
you can, of the state and condition of all Foreign Plantations,
8o The Administration of Dependencies
and by what commissions and authorities they are and have
been governed and disposed of; and are to procure, either from
such persons as have any grants thereof from the Crown, or
from the records themselves, copies of all such commissions or
grants, to be transcribed and registered in a book provided
for that purpose, — that you may be the better able to under-
stand, judge and administer such affairs as by your commission
and instructions are intrusted to your care and management.
2. You shall forthwith write letters to every Governor for
the time being of all our English Plantations, and to every
such person or persons who, by any letters patent from us or
any of our predecessors, claims or exercises the right of gov-
ernment in any of the said Plantations; in which letters you
are to inform them of our gracious care and provision in their
behalf, both in erecting a general Council of Trade wherein
their concernments are mingled and provided for with [those
of] the rest of our dominions, and especially [in erecting^ this
) particular Council, which is applied only to the inspection,
< care and conduct of Foreign Plantations.
3. You are in the said letters to require the said Governors
and persons above-mentioned, to send unto you in writing,
with the advice of the Council of every of the said Plantations
respectively, a particular and exact account of the state of
their affairs, of the nature and constitution of their laws and
government, and in what model and frame they move and are
disposed, what number of men, what fortifications and other
strengths and defences are upon the places, and how furnished
and provided for.
4. You are to order and settle such a continual correspond-
ence that you may be able, as often as you are required there-
unto, to give to us an account of the government of each
Colony, of their complaints, their wants, their abundance of
their several growths and commodities, of every ship trading
there and its lading, and whither consigned, and what the
proceeds of that place have been in the late years; that
thereby the intrinsic value and the true condition of each
part and of the whole may be thoroughly understood, whereby
a most steady judgment and balance may be made for the
Imperial Councils, 1625-1750 81
better ordering and disposing of trade and of the proceeds
and improvement of the Plantations, that so each place within
itself and all of them being collected into one view and man-
agement here, may be regulated and ordered upon common
and equal ground and principles.
5. You are to apply yourselves to all prudential means for
the rendering those dominions useful to England and England
helpful to. Jtbem; and for the bringing the several Colonies
and Plantations within themselves into a more certain, civil
and uniform way of government and for the better ordering and
distributing of public justice among them.
6. You are to inquire diligently into the several govem-\
ments and counsels of colonies, plantations and distant do-
minions belonging to other Princes or^ States, and to examine
by what conduct and policies they govern or benefit them;
and you are to consult and provide that, if such counsels be
good, wholesome and practicable, they may be applied to the
use^oTour Plantations, or if they tend or were designed to the
prejudice or disadvantage thereof or of any of our subjects or
of trade or commerce, then they may be balanced or turnecj/
back upon them.
7. You are to call to your assistance from time to time, as
often as the matter in consideration shall require, any well
experienced persons, whether merchants, planters, seamen,
artificers etc.
8. You are to take especial care and inquire into the strict
execution of the late Act of Parliament entitled an Act for
the Encouragement and Increasing of Shipping and Naviga-
tion ; that, as much as in you lies, none of those good ends
and purposes may be disappointed for which the said Act was
intended and designed.
9. You are to take into your consideration how our several
Plantations may be best supplied with servants, that neither
our Colonies — especially such as are immediately under our
commissions — may be unprovided in so essential an assistance,
nor any of our good subjects may be forced or enticed away
by any unlawful or indirect way; and ho^MsuchiM are willing
to be transported thither to seek better fortune than they can
82 The Administration of Dependencies
meet with at home may be encouraged thereunto ; and how
such a course may be legally settled for the future that vagrants
/ and others who remain here noxious and unprofitable may be
so transplanted, to the general advantage of the public as well
as to the particular commodity of our Foreign Plantations.
10. You are most especially required to take an effectual
care of the propagation of the Gospel in the several Foreign
Plantations, by providing that there be good encouragement
settled for the inyit^on and maintenance of learned and
orthodox ministers, and by sending strict orders and instruc-
tions for the regulating and reforming the debaucheries of the
planters and servants, whose ill example doth bring many
scandals upon Christianity and deter such as yet are not ad-
mitted thereunto from affecting or esteeming it. And you are
/to consider how such of the natives [as are servants or slaves],
or such as are purchased by you from Qt.her jparts to be servants
or slaves, may be best invited to the Christian faith, and be
made capable of being baptized thereunto, — it being to the
honor of our Crown and of the Protestant Religion that all
persons in any of our dominions should be taught the knowl-
edge of God and be made acquainted with the mystery of
salvation.
11. You are lastly required and empowered to advise, order,
settle and dispose of all matters relating to the good govern-
ment, improvement, and management of our Foreign Planta-
tions, or any of them, with your utmost skill, direction and
prudence; and in all cases wherein you shall judge that further
powers and assistance shall be necessary, you are to address
yourselves to us or our Privy Council for our further pleasure*
resolution and direction therein.
Under this Council for Foreign Plantations a Charter
was granted to Connecticut in 1662, under which the
Colony and State lived for one hundred and fifty-six
years — until 18 18; and another to Rhode Island in 1663,
under which the Colony and State lived for one hundred
and seventy-nine years — until 1 842. While these Colonies
were both allowed the right to elect their own Governor,
Imperial Councils, 1625- 1750 83
Assistants and Representatives, and while no provision
was made in the Charter for the Crown having an ap-
pointed representative in the Colony, this was evidently
permitted as a special regime, since under this Council
there were granted, in 1664, the Patent to the Duke of
York, who succeeded Charles II. as King, covering nearly
the whole region north of Maryland not included in pre-
vious charters, by which the Duke of York was created
Lord Proprietor and in which there is no mention of any
participation of the people in the government, and, in
1665, the Charter of Carolina, which created a County
Palatine in which the Lords Palatine were required only
to advise with the representatives of the people.
By Instructions given to this Council for Foreign Plan-
tations in July, 1670, the Council was required
To give strict order to our several and respective Governors
that if any of the Indian nations shall at any time desire to put
themselves under the protection of our Government, that they
receive them, and that they do by all means seek firmly to
oblige them, and that they do direct or employ some persons
purposely to learn the languages respectively of them, and
that they do not only carefully protect and defend them from
other Indians, and from any that are the adversaries of them,
but that they more especially take care that none of our own
subjects, nor any of their respective servants, do, at any time
in any way harm them, and that if any shall dare to offer
violence to them in their respective persons, goods or posses-
sions, the said Governors do severely punish the said injuries /
agreeable to justice and right.
On September 16, 1672, Charles II. abolished both the
Council for Trade and the Council for Foreign Planta-
tions, and by Letters Patent formed a ** Select Council to
take Care of the Welfare of the Colonies and Plantations,
and of the Trade and Navigation of the King's Do-
minions, Domestic and Foreign, and of his Colonies."
34 The Administration of Dependencies
This Council was known as ** The Council for Trade and
Plantations." It was a referee body for the King in
; Council, being required ** to certify the result of their
«
resolutions on any propositions submitted to them by
the King for consideration and determination."
This was not a sufficient centralization of power for
Charles II. The Council for Trade and Plantations was
too much inclined to advise measures which would have
given the dependencies a just and expert government.
/ On March 12, 1675, he abolished the Council, and placed
the administration of Imperial affairs in the hands of him-
self advised by a Committee of the Privy Council, called
V the ** Lords of Trade and Plantations."
Under this arrangement the Charter was granted in
1 68 1 to William Penn, of the Province of Pennsylvania,
to be held and governed by him as Lord Proprietor.
Under this arrangement, also, the Charters of Massachu-
setts Bay and Connecticut were adjudged forfeited on quo
warranto proceedings in the Court of King's Bench — the
former in 1684, and the latter in 1687, — and Sir Edmund
Andros was made Governor-General of New England in
1686, and of both New England and New York in 1688.
Had the plans of Charles II. been carried out, New Eng-
land and New York together would have been formed
into a single federal or unitary dominion, according as
the English Government had or had not respected the
right of the Colonies so consolidated to statehood.
' William III. came to the throne under a constitutional
settlement by which he agreed with the Lords and Com-
mons that he was to be the King of England and of
** the dominions thereunto belonging." This was, in
effect, a declaration that England was the Imperial
State on which the American Colonies were dependent,
and that his powers as King were the powers of the
official representative of the Imperial State. None of
'. his royal predecessors had made any such admission.
Imperial Councils, 1625-1750 85
The Stuart Kings regarded the Colonies as belonging to
theniselves rather than to the State of England. In
view of the careful and deliberate thought which was
given to the ascertainment of the true principles of the
Constitution of the Realm and of the Empire at the
time of the accession of William III., the methods of
administering the dependencies which were used by him
deserve the most careful attention. It is fair to assume
that such of the methods as were brought over from the
times of the Stuarts were retained because they were
approved by the most distinguished constitutional law-
yers of England.
For six years after his accession in 1688, William III. [
managed the affairs of the Empire by the advice of a '
Committee of the Privy Council, and it was under this
arrangement that the Charter of the Province of Massa-
chusetts Bay was granted in 169 1, seven years after the for-
feiture by quo warranto instituted by order of Charles II.
of its Charter of 1629. By this Charter, it became a\
Province, with a royal Governor, but with the rest of its y
government elective. The five years during which Massa-
chusetts Bay had been under the immediate adminis-
tration of Governor Andros, with all his arbitrariness, and
under the superintendence of Charles II., with all his
ideas of absolutism, had somehow made the people of '
the Colony willing to give up their guild form of organi-
zation and to become a Province under the empire of the ■
State of England.
In 1696 William III. returned to the plan originated by /
larles II. and instituted a " Board of Commissioners for ',
Charles
1
Trade and Plantations," composed of high officers of '
State and men expert in colonial affairs. The idea of this
Council seems to have originated with the House of
Commons, not with the King. On January 31, 1696,
after the House of Commons had been sitting as a Com-
mittee of the Whole on the State of the Nation with Re-
86 The Administration of Dependencies
spect to Trade at various times ever since December 14,
1695, it came to the following resolutions in Committee
of the Whole :
1. Resolved, That it is the opinion of this Committee that
a Council of Trade be established, by Act of Parliament, with
powers for the more effectual preservation of the trade of this
Kingdom.
2. Resolved, That it is the opinion of this Committee, that
the Commissioners constituting the said Council of Trade
shall be nominated by Parliament.
3. Resolved, That it is the opinion of this Committee that
none of the said Commissioners be of this House.
.......
8. Resolved, That the said Commissioners be likewise em-
powered to consider the Plantation Trade and all other trades
and manufactures; and the best methods for securing and
improving the same.
The third resolution was defeated, but the others
passed.
The sixth resolution, which was adopted, read :
Resolved, That it is the opinion of this Committee that the
said Commissioners do send their directions for the protection
of trade to the Lord High Admiral of England or the Com-
missioners for executing that office; which directions are to
be controllable by his Majesty under his sign manual.
Burnet, in his History of His Own Times^ says of the
debates on these resolutions :
The creation of this Council of Trade by Act of Parliament,
was opposed by those who looked upon it as a change of our
Constitution in a very essential point. They urged that the
Executive part of our Government was in the King, so that
the appointing any Council by Act of Parliament began a pre-
cedent of their breaking in upon the execution of the law, in
which it could not be easy to see how far they might be
Imperial Councils, 1 625-1 750 87
carried. It was indeed offered that this Council should be
much limited as to its powers; yet many apprehended that if
the Parliament named the persons, how low soever their
powers might be at first, they would be enlarged every ses-
sion; and, from being a Council to look into matters of trade,
they would next be empowered to appoint convoys and i:ruis-
ers. This, in time, might draw in the whole Admiralty, and
that part of the revenue or supply which was appropriated to
the Navy; so that a King would soon grow to be a Duke of
Venice. And indeed those who set this on most zealously did
not deny that they designed to ingraft many things upon it.
The King was so sensible of the ill effects which this would
have that he ordered his Ministers to oppose it as much as
possibly they could.
The fear that if the King were deprived by Parliament
of the function of administering the relations with foreign
States and with the dependencies, he might ** grow to
be a Duke of Venice," was a fear that he might grow to
be a mere figurehead, — the government of the Venetian
Republic being then so largely in the hands of Adminis-
trative Boards that the Doge had no powers whatever.
The underlying thought of the opponents of the measure\
was, that it was contrary to the nature of things that
Parliament, led by the House of Commons, as the pop-
ular part of the Government, should perform the func-
tions of the State with respect to foreign States and the
dependencies, and that such action would be a usurpa-
tion, by the House of Commons, of power which, in they
nature of things, belonged to the King.
The House of Commons yielded to the King's wishes /
and the resolutions were not pressed.
It seems the more probable that the functions of this
Council, had it been created, would have been extended
to the administration of the American Colonies, when it
is considered that, at the very time these resolutions were
adopted, the House of Commons was considering a Bill
88 The Administration of Dependencies
which became an Act in March, 1696, ** for Preventing
Frauds and Regulating Abuses in the Plantation Trade,"
V known as the Navigation Act of 1696.
The grant of powers by William III. to the first Coun-
cil for Trade and Plantations is thus summarized by Mr.
Thomas in his History of Public Departments :
The commission was for promoting the trade of the King-
dom generally, and inspecting the Plantations in America and
elsewhere ; and for this latter purpose, they were directed to
take under their care all records, grants, and papers, remain-
ing in the Plantations office, or thereto belonging: to inform
themselves of the present condition of the Colonies, as well
with regard to administration of the government and justice
in those places as in relation to the commerce thereof; to look
into the usual instructions given to Governors of Plantations,
and to see if anything might be added or omitted; to take
account yearly, by way of journal, of the administration of
Governors ; to consider of proper persons to be Governors or
Deputy Governors, ... in order to present^their names
to the King in Council; to weigh all Acts of the^Ajisemblies
of the Plantations as shalf be sent to England for the King's
approbation; the Commissioners to report their proceedings
from time to time to the Kiiig or Privy Council.
f The system thus established by William III, was fol-
' lowed with slight changes, actually until the year 1750,
\ and nominally until the year 1782. Under it the Crown,
in 1729, bought out the Proprietors of Carolina and
erected the two parts of it into separate Provinces by the
names of North Carolina and South Carolina. Under it
,| also, in 1732, a Charter was granted to a guild or privil-
eged company known as **The Trustees for Establishing
the Colony of Georgia in America," under the control of
a President and Common Council elected by the mem-
bers of the corporation, in accordance with which the
corporation was to have the sole power of legislation in
Imperial Councils, 1 625-1 750 89
the Colony under the supervision of the Board of Trade
and Privy Council, for twenty-one years. To the Board
of Commissioners for Trade and Plantations, throughout
the whole period from 1695 to 1750, were referred all
colonial questions except some of those arising in the
administration of Crown Colonies, which were under the
direct control of the King through a Secretary of State.
The Board reported the facts and its conclusions to the
Committee of the Privy Council for Plantation Affairs,
and they determined the matter and reported to the King,
who, though of course at liberty to accept or reject their
conclusions, did as matter of fact accept them in practi-
cally every instance.
The Colonies sent their " Agents " to present the con-
siderations growing out of the local circumstances and
conditions at the hearings before the Board of Trade and
Plantations and before the Committee of the Privy
Council for Plantation Affairs. The practice of keeping
an "Agent " permanently at the English Court seems to
have been originated about the year 1670, by the Province/
of Virginia. From that time forward, this practice seems
to have been quite commonly adopted by the Colonies.
An *' Agent/' in the nature of things, fulfilled in part the
functions of a public and diplomatic representative of his
Colony, and in part the functions of an attorney-at-law
for the Colony before the Administrative Tribunals hav-
ing in charge the dispositions of colonial affairs to be
made by England as the Imperial State.
Thus had grown up a complete system of Imperial ad-
ministration,, under which the relations with the depend-
encies (that is, the affairs of the Empire) were separated;
from the affairs of the Realm, and placed in the hands ofi
Imperial Councils, composed of experts in finance and!
economics and of high administrative officials of the
Realm, before which, as before High Administrative
Courts, or Tribunals of International Arbitration, the
90 The Administration of Dependencies
Colonies could come, in one sense as suitors, but in
another sense as distinct political personalities, or States,
having rights which were to be ascertained and declared
according to principles to which they had consented.
CHAPTER VI
IMPERIAL NOMENCLATURE, 1625-1/50
AS the system of administration of the Colonies be-
came more and more fixed along certain lines, the
nomenclature became fixed accordingly. The
name ** colony" was the generic name for any distinct
region and community in America, controlled by the
English inhabitants and independent of all external
power except the power of the State of England or
Great Britain. It was a name which, from its origin,
conveyed no necessary implication that the community
called by that name had any political status whatever.
Settlements were called "colonies" equally when they
were little more than farms or factories, and when
they had arrived at an organization so complete that
they resembled half-sovereign States.
Sir George Cornewall Lewis, in his Essay an the Govern-
ment of Dependencies^ published in 1841, says of the word
'•colony":
. The coloma were settlements of Roman citizens in Italy,
who occupied a conquered town, divided the whole or a large
part of the lands belonging to its citizens among themselves,
and became the colom or cultivators of the lands thus appro-
priated.
Colonia was formed from colonus ; and colonus was formed
from coloy and signified a cultivator. Colonia had also the
sense of a farm. Compare the modem word "plantation,'*
which means both a farm and a settlement. The idea of
cultivation, and not of military occupation, was therefore con-
tained in the word colonia,
91
92 The Administration of Dependencies
The word colonia was, however, used in the Latin lan-
guage, and the word "colony *' in the English, to signify
not only a community located in a region for the purpose
of developing and cultivating it and its inhabitants, but
also to signify a community which had been detached
from the body of a State, and was, by reason of this fact,
related to the State not only by ties of race and kindred,
but also politically or semi-politically. The Oxford Die-
tionary says of this use of the word "colony " :
The Roman writers used the word colonia to translate the
Greek anoixla^ — literally " people from home," — that is, a
body of emigrants who settled abroad as an independent self-
governed noXis or State, unconnected with the ^rftfjondkts
(metropolis) or mother-city, save by religious ties.
The word "plantation " had this same double meaning
of a settlement of planters and a settlement planted by
a State. Thus Lord Bacon, in his Essay on Plantations^
said:
Plantations are amongst ancient, primitive and heroical
works. When the world was young, it begat more children ;
but now it is old, it begets fewer : For I may justly account
new Plantations to be the children of Kingdoms . . . Plant-
ing of countries is like planting of woods ; for you must make
account to lose about twenty years' profit, and expect your
recompense in the end . . . The people wherewith you
plant ought to be gardeners, ploughmen, laborers, smiths, car-
penters, joiners, fishermen, fowlers, with some few apothecaries,
surgeons, cooks, and bakers.
The use of the word " colony " to describe every form
of political community external to a State and constitu-
tionally related to it probably arose from the practice of
regarding the natives of the State who emigrated, and
their associates and descendants, as alone constituting
the political community. This conception still prevails to
Imperial Nomenclature, 1 625-1 750 93
some extent, especially in France, the native and foreign
populations of dependent regions being regarded as so
many individuals without status as members of a political
community. Thus, M. Arthur Girault, in his Principes
de Colonisation et Legislation Coloniale^ says :
One perceives, upon examination, a double civilizing action
on the part of those who emigrate for colonizing purposes,
exercised at the same time towards the material resources and
towards the people of the region.
First, towards the material resources. The emigrants im-
prove the harbors, build roads, clear and cultivate the soil,
exploit the mineral wealth — in a word, utilize all the resources
which the native inhabitants have drawn on only to a partial
extent.
Secondly, towards the people of the region. Efforts are
made to raise the natives to our civilization, to put an end to
barbarous customs. Missionaries try to convert them to the
religious beliefs prevailing among civilized peoples. Com-
mercial agents, in quest of new markets for their products, en-
gender new wants among them. . . .
It is this civilizing action, this double culture of the soil
and its inhabitants, which constitutes the work of colonization
properly so-called. Moreover this sense corresponds to the
original etymology of the word, ** colonize " being from the
same root as colerCy to cultivate.
There is thus implied in the name "colony," as applied
to inhabited regions acquired by cession, conquest, or
occupation, a social and economic superiority, on the
part of the dominant State, over the related and de-
pendent communities. Political superiority, however,
by no means necessarily implies social and economic
superiority. A community which, in the beginning of
the relationship, is socially and economically inferior to
the dominant State, may, with the passage of time, come
to equal or surpass the dominant State in civilization,
94 The Administration of Dependencies
without changing its relationship of political subordina-
tion. It is even conceivable that a political community
of higher civilization than that of the State to which it is
external and related might, from the very beginning of
the relationship, be in a condition of political subordina-
tion to this State and might remain in such a condition
indefinitely. The name "colony*' applied to such a
community would be a palpable misnomer.
Giving the word "colony" its widest meaning, it
seems to be the proper word only when the connection
between the dominant State and the external related
community is viewed from the social and economic stand-
point, and when the external related community is on a
lower scale of civilization than the dominant State, and
so loosely organized that the power of the dominant State
may be systematically applied, through an organized body
of its own citizens who emigrate for the purpose, toward
the civilization of the natives and toward the proper ex-
ploitation of the natural resources of the region. It seems,
therefore, that the word "colony" can never properly be
adopted as the generic word to describe the communities
external to a State and under its political control or
superintendence.
The word " mother-country " to denote the Imperial
State, and the word " colonies " to denote its dependen-
cies,— that is, to describe the political relationship,—
were, however, in 1750, in almost universal use in
Great Britain and America. The political relationship
had not been carefully distinguished from the social and
economic relationship.
The first American Charter in which an American Col-
ony was recognized as having a political status was that of
Maryland of 1632, granted to Lord Baltimore. In that
Charter, Maryland was declared to be a " Province," and
its relations to the State of England were declared to be
exactly those which the County Palatine of Durham held
Imperial Nomenclature, 1625-1750 95
to that State. A county palatine differed from an
ordinary county in that the count palatine exercised
some royal functions and was regarded as the representa-
tive of the person of the King. The County Palatine of
Durham was a border county between England and Scot-
land and on that account had, under the Bishops of Dur-
ham as Counts Palatine, enjoyed a semi-independence,
having almost complete statehood, though being subject
to the superintendence of the King and Parliament of
England. Lord Baltimore, as Count Palatine and Lord
Proprietor of Maryland, was the representative of the
person of the King, — the King's Deputy, who exercised
the same powers as the King might have exercised if he
had been present, subject, however, to the King's ratifi-
cation or disapproval by order in Council.
The name " province," as applied to such a political
community as the inhabitants of Maryland formed, seems
to have been taken from the public law of Rome relating
to the administration of dependencies. Perhaps the prov-
inces of the Realm of France, as they then existed, may
also have suggested its use.
Mr. C. P. Lucas, in an appendix to the 1891 edition of
Sir George Cornewall Lewis's Essay on the Government
of Dependencies^ has this to say concerning the meaning
of the word " province " :
Provincia is derived by Festus from pro and vincere^ accord-
ing to which etymology it would mean " a country formerly
conquered." This etymology has been adopted by the mod-
ems, with no other modification than that suggested by Vos-
sius, viz., \h2Xpr0 should be taken not for ante^ but ioi procuL
Provincia would thus signify ** a country conquered at a dis-
tance." This etymology, however, seems objectionable on
two grounds: i. Provincia is not formed by a proper analogy
from vinco ; it ought rather to be formed from a past tense
or participle, like victor^ victoria, 2. The derivation from vinco
does not satisfactorily explain the other meaning oi provincia^
96 The Administration of Dependencies
viz.: ** function," ** department," "business"; which it ap-
pears to have had at an early period, since this usage occurs
in familiar language.
It seems to me therefore most probable that provincia is con-
tracted ixom pravidentia^ and originally meant " that which a
person had to look after, to attend to, to care for"; that its
primitive meaning was ** business," "function," ** depart-
ment"; and that it acquired the secondary sense of "a for-
eign dependency " of Rome, because the management of the
district was the department of one of the consuls or praetors.
The contraction of provincia from providentia is not greater
than in other similar words; and the change of / into c after n
has nothing remarkable. Cancio from converUio affords a
parallel to both changes.
A " province," in the American and British public law
of 1750, was a species of " colony," which had, as a part
of its constitutional settlement with Great Britain, a
representative of the State of Great Britain residing
within it, who participated in the government.
Provinces were of two kinds — those over which the
Crown (that is, the State) of England or Great Britain
had granted to individuals, as Counts Palatine and Lords
Proprietors, full powers of government, which they held,
to themselves and their heirs, subject to the conditions
and trusts specified in the Charter in favor of the State
of Great Britain and the inhabitants of the province;
and those immediately dependent on the Crown,
in which the King was represented by a Governor,
appointed by the King in Council and holding office
during his pleasure, who was the agent of the King,
and the public and diplomatic agent of England or
Great Britain, and the Chief Executive of the province.
Under grants to individuals as Counts Palatine and
Lords Proprietors, the inhabitants were allowed to partici-
pate in the government only to such extent as the Lords
Imperial Nomenclature, 1625-1750 97
Proprietors saw fit. This resulted usually in the inhabi-
tants being represented only in the House of Representa-
tives. When the King created a province immediately
dependent upon himself, the invariable purpose of the
English and British Government was to have not only
the Governor, but also his Council (which was at the
same time his Privy Council and the Upper House), ap-
pointed by the King. When only the Governor was ap-
pointed by the King, it was because the demand of the
inhabitants of the province for statehood to the highest
extent possible was so strong as not to permit the Council
to be an appointed body.
The acceptance, by the various communities on and
near Massachusetts Bay and on the coast above, of the .
Charter of 1691, by which all these communities were
united into a province, under the name of " The Prov-
ince of Massachusetts Bay," marked a great advance in the
political thought of both England and America. It had
been realized that the establishment of a region as a
province was a recognition of it as a State in a relation-
ship of constitutional (and hence of conditional and
limited) dependence upon the Imperial State, and that
the provincial form of government solved the problem
how to justly and fairly maintain this constitutional de-
pendence.
Perhaps one of the causes which led to the willingness of
Massachusetts Bay, in 1691, to accept a Charter by which
it became a province, was the position taken by England
with regard to Ireland. Though William and Mary had
been declared to be King and Queen of "England, Scot-
land and Ireland and the dominions thereunto belong-
ing," nevertheless, when Ireland, in 1690, presumed to
put itself on an equality with England, claiming to be
an independent State, in personal union with England
through the King, by its Lords and Commons holding
what they called a Parliament in Dublin and purporting to
98 The Administration of Dependencies
recognize King William as King, English troops at once
reduced it to subjection, and it was constitutionally
settled to be a province, with a royal Governor and
Council, a hereditary House of Peers, and an elected
House of Commons. Thenceforward, it was evident
that the constitutional settlement of 1689 between King
and people had not operated to convert the colonies
of England into independent States, and that the high-
est grade of constitutional relationship attainable by
any political community external to England and sub-
ject to the control of that State, was that of a province
with a large degree of statehood. After Massachu-
setts Bay had taken the lead, there was no reason for
the other Colonies to refuse to occupy the same kind of
position in the Empire. All the other Colonies had be-
come provinces before 1750, except Connecticut and
Rhode Island; and, as before said, they were guilds or
privileged companies and hence rightfully subject to
be converted into provinces at any time, by mere re-
sumption by the Crown of its rights. That no advantage
was taken by William HI. of the surrender of the Rhode
Island Charter to Governor Andros and of the judgment
of forfeiture rendered by default against Connecticut in
1687, was doubtless due to the fact that these Colonies
gave no special cause for forfeiting their franchises as
guilds, and that, had the King resumed the government
without special cause, however legal his action might
have been, it would have been regarded by these Colonies
as a violation of their constitutional rights. Maryland
and Pennsylvania were under a merely nominal control
of Lords Proprietors and were hence royal provinces in
fact, though proprietary provinces in name.
The form of words by which provinces were created
was in every case such as to show that the province was
dependent, for its rights of statehood, upon the recogni-
tion and disposition of the State of England, as an ex-
Imperial Nomenclature, 1 625-1 750 99
ternal Sovereign having power to adjudicate concerning
the degrees of statehood which its dependencies ought
properly to enjoy. Thus in the Charter of Maryland
of 1632 the words used by Charles I. were ** do erect
and incorporate into a province." In the Charter of
Maine of 1639, his words were ** do create and incor-
porate into a province." In the Charter of Carolina
of 1662 the expression used by Charles II. was " do
erect, incorporate and ordain into a province." In the
Charter of Pennsylvania of 168 1, Charles II. '* erected "
Pennsylvania ** into a province." In the Charter of
Massachusetts Bay of 1691, the regions specified were,
by William III., " erected, united and incorporated into
a province." The usage in this respect has a peculiar
interest, because the words ** erect " and "create " were
used in resolutions offered in the Constitutional Conven-
tion of 1787 to describe the power of Congress over the
"new states" (that is, the dependencies) which were
expected to be formed in the Northwest Territory.
By the practice which prevailed between the years 1700
and 1750, any region and community was considered a
" province" of which the King, on forfeiture of a charter
under which it had existed as a guild or a county pala>
tine, had resumed the government by Proclamation or
Letters Patent through an appointed Governor or an ap-
pointed Governor and Council, without granting a new^
charter formally " erecting " the region and community
into a province. Under this practice, Virginia, which
before 1700 was called a " Dominion " was called a
" Province."
The name " province " by no means implied absolute
power on the part of the Imperial State over the popula-
tion erected into a province. Indeed, if Mr. Lucas's
derivation be correct, the word " province" contained,
in itself, a recognition that the Imperial State was under
an obligation in making its adjudications concerning
loo The Administration of Dependencies
the degree of statehood to which the province was en-
titled, to adapt the form of government to the local
circumstances and conditions to the extent that they
could be met consistently with the higher obligations
which required it to act for the general welfare. It did
not imply any lack of consent of the population of the
province to the form of government under which they
were, or an absence of participation by them in their
own government. It assumed that a constitutional re-
lationship existed between the Imperial State and the
province as a dependent State, and implied that the
power of the Imperial State was a power of disposition as
distinguished from a power of legislation.
Besides the words "colony" and "province," the
words "dominion" or "dominions" and "territory"
or "territories" were used to describe the American
Colonies as related to England and Great Britain.
In the Virginia Charters of 1606, 1609, and 161 1, the
"Colonies " or "Plantations " in Virginia were uniformly
treated as a part of the "dominions " of the King. Thus
in both the Charter of 1606 and that of 1609 it was pro-
vided that :
All and every the persons being our subjects, which shall
dwell and inhabit within every or any of the said Colonies
and Plantations, and every of their children which shall hap-
pen to be born within any of the limits and precincts of the
said Colonies and Plantations, shall have and enjoy all liber-
ties, franchises and immunities within any of our other domin-
ions, to all intents and purposes as if they had been abiding
and bom within this our Realm of England, or any other of
our said dominions.
The same provision is found in the other Colonial Char-
ters with the addition that children born at sea to Eng*
lish or British subjects going to or returning from the
Colonies were given the same privileges.
Imperial Nomenclature, 1 625-1 750 loi
The word " dominion" of course means literally the
power which the head of a household {domus) exercises
over it.
In the civil law, to quote the words of Mr. Gordon
Campbell, in his Treatise on Roman Law:
Dominium gives to him in whom it is vested the power of
applying the subject to all purposes, except such as are incon-
sistent with his relative or absolute duties.
The Century Dictionary defines "dominion" in the
civil law as '' the ownership of a thing, as opposed to a
mere life interest, to an equitable right, to a merely pos-
sessory right, or to a right against a particular person."
In this wide sense, the same dictionary defines " do-
minion " as " a territory and people subject to a specific
government or control."
Up to the time of the Commonwealth, the word " do-
minions " seems to have been used in this large meaning.
Then, however, there seems to have arisen a doubt
whether the word "dominions" was wide enough to
cover all the region under every form and in every degree
of connection with the State of Great Britain. In the
Act of May 17, 1649, abolishing the ofHce of King, Charles
I. is spoken of as "Charles Stuart, late King of England,
Ireland, and the territories and dominions thereunto be-
longing," and in the Act of May 19, 1649, establishing
the Commonwealth, the expression, " the people of
England and of all the dominions and territories there-
unto belonging," is used. In the Instrument of Govern-
ment of 1653, the expression used, however, is " the
Commonwealth of England, Scotland and Ireland, and
the dominions thereunto belonging." Though Cromwell
was by this Act declared to be " Lord Protector of the
Commonwealth of England, Scotland and Ireland, and
the dominions thereunto belonging," his title was after-
wards changed by the addition of the words " and
I02 The Administration of Dependencies
territories** after the word "dominions," and his son
Richard was given the title in this enlarged form.
Thus there was made a division of the '* dominions "
of the English State into two classes, the dominions o/
and within the State, and the dominions belonging and
external to the State.
After the restoration of Charles II., a question arose
as to the proper title of Virginia, which, in its Articles of
Surrender to the army of the Commonwealth, in 165 1, had
agreed that it should '* be and remain in due obedience and
subjection to the Commonwealth of England." In the
Acts of the Colonial Assembly, during the period from
1660 to 1666, Virginia was described as ** the Country
of Virginia." In 1666, Charles II. took Virginia under
his direct government by Letters Patent, in which it was
" declared and granted *' that all the King's sub-
jects inhabiting within the Colony should "have their
immediate dependence upon the Crown of England,
under the rule and government of such Governor or Gov-
ernors as we, our heirs or successors, shall from time to
time appoint in that behalf." Thenceforward Virginia
was called " the Dominion of Virginia," and in 1682,
upon the reorganization after Bacon's Rebellion, the
General Assembly adopted this name as the description
of the Colony.
When James II., in 1686, converted New England and
New York into a single Government by means of a com-
mission to Sir Edmund Andros as Governor-General, the
region and its inhabitants were officially styled " The
Territory and Dominion of New England," and were
commonly called " The Dominion of New England."
It thus appears that a ** dominion " was a specific part
of the dominions "belonging to " England, which differed
from a ** province" merely in the fact that it had not
been ** erected" or "created" or "incorporated " as
such. A dominion was, in fact, a province arising by rec-
Imperial Nomenclature, 1625-1750 103
ognition of the Crown, and not by express grant. The title
of Virginia as the ** Old Dominion " is justified from the
fact that its relationship to the State of England did not
legally change between 1625, when Charles I. resumed
its government, and the Declaration of Independence, so
that as it was a " Dominion " in 1682, it was a "Domin-
ion" from 1625 to 1776, and hence entitled to the credit
of having attained in advance of all the other Colonies
to the ultimate type, later called a " province."
Up to the time of the Commonwealth, the word
** territories,*' when used in the Colonial Charters, seems
to have no certain meaning. It is used in such a way
that it may be taken as meaning land under government,
or outlying land, or vacant land, or settled land external
to England, or land occupied by barbarous tribes, and
perhaps with other meanings. In the time of the Com-
monwealth it seems to have been used with a specific
meaning, though exactly what that meaning was, it is
somewhat difficult now to determine.
The etymology of the word "territory" has been dispu-
ted from the earliest times. Grotius, in his P^ace and War
(book iii., chapter vi., sections 3 and 4), and Barbeyrac,
his commentator, in his notes to the passage, go exten-
sively into the question, and M. Pradier-Fod^r^, in his
very recent TraiU de Droit International Public (vol. ii.,
section 612), also considers it with some care. The de-
rivation which Grotius, writing in 1625, adopted, on the
authority of Flaccus, Frontinas, and Pomponius, all Latin
writers of the classical period, in which he was followed by
" the learned *' Gronovius, and which seems necessitated
by the rules of the Latin language, is from the Latin verb
terreoy meaning" to hold in subjection by terror or exces-
sive fear, "the double suffix toriutn giving the whole word
territorium in Latin the literal meaning of *' a place per-
taining to a person who holds in subjection through terror
or excessive fear," — that is, through awe or dread.
I04 The Administration of Dependencies
creating obedience, respect, and reverence, — and the de^
rived meaning of " a place subject to the exclusive control
of a person or a political community.*'
The first writer who ever attempted to define the word,
Marcus Terentius Varro, a friend of Cicero's, who wrote
about 20 B.C., defined territorium as colonis locus com-
munis ^ qui prope oppidum relinquitur — that is, " a place
common to the farmers (or colonists) which is left near a
town." In the passage from which this is taken he de-
rives the word from the Latin verb terete^ to wear away
(by rubbing, that is, by frequent working over or by fre-
quent footsteps). This derivation seems impossible, as
the derived substantive would, under the rules of the
Latin language, have been tritorium. Assuming, there-
fore, that Varro was correct as to the meaning of the
word in his time (to doubt which would be rationally im-
possible), but that he was mistaken concerning the deri-
vation (which is by no means improbable), the character
of the early Roman colonization makes it possible to
trace a close connection between Varro 's definition and
the verb terreo. The first Roman colonies were, to use
the language of Sir George Comewall Lewis, '' garrisons
of Roman citizens placed in conquered towns of Italy,
the colonists retaining their full rights as Roman citi-
zens." Niebuhr, in his History of Rome, informs us that
all the towns of Italy, in the ancient days, had common
land outside the town, and that in case of conquest by
Rome, the practice was for the conquerors to confiscate
one third of both the town land and the common land, and
to allot to each member of the colony sent there to act
as a garrison a quantity of land inside the town sufficient
for a garden, but insufficient for the support of a family,
so that the colonists had, in order to support life, to
cultivate the common land and share in its product.
Such " land common to the farmers (or colonists) left
near the town" may very well have been called terri-
Imperial Nomenclature, 1 625-1 750 105
torium, because the old population and all foreigners who
were inclined to the side of the old population were kept
out of it, or held in subjection while in it, by fear. Such
a region was, as we say, "commanded *' by the garrison.
Assuming that the word " territory" is derived, as it
seems necessary to conclude, from the Latin terreo^ and
to mean a place held in subjection by terror, it is the one
word which, when without qualifying language, expresses
the idea of a region and people under the unlimited and
unconditioned power of an external human will. Of
course a region held in subjection through terror might
at the same time be governed according to just princi-
ples, and therefore a power over ** territory '* dependent
on a State, to dispose of it and make all needful rules and
regulations respecting it, is not objectionable to the most
advanced political thought.
One of the meanings which has at all times been at-
tached to the word ** territory " has been that given by
Varro, of a region adjacent to an organized community
and dependent upon it for its government, though not
forming a part of the personality of the community.
The derived meaning of " territory," — " all the space
in which the depositaries of the public authority are able
to execute the will of the Sovereign by the employment
of the force at their disposal " (Pradier-Foder^), or, ** the
extent of land and water which depends exclusively from
the supreme power of a State " (de Martens), — doubtless
arose from regarding the depositaries of the supreme
governmental authority as the supreme power in the
State, so that the town, city, or State itself, and its
territorium or dependencies, were regarded as constitut-
ing a single territorium over which they were supreme.
A possible explanation of the use of the word "terri-
tories" with "dominions" in the time of the Common-
wealth is that at that time publicists doubted whether
a State, as such, could be said to have "dominions,"
io6 The Administration of Dependencies
since the existence of "dominions *' implied a person who
was the dominus or lord of the region under dominion.
A State was not at that time recognized by all publicists
as a person. The institution of the Crown, in which the
title to property belonging to the State of England was
vested, was due, in part, to the fact that the State of Eng-
land, as such, was supposed not to be a legal corporate
person capable of holding and managing real estate. If
it had not sufficient legal personality to hold real estate,
it was doubtless argued that a fortiori it was not a moral
person, charged with the moral obligations which are
implied in the word *' dominion," and that consequently
the power of England over regions external to itself
arose from the fact that these regions were merely appur-
tenances "belonging to" the State or "territory,** or
parts of the whole body of " territories," subject to the
power of the State, as its " property."
Another meaning which " territory " or " territories"
seems sometimes to have had in the literature of the
period, was that of unsettled or wild lands. The use of
the word in this sense perhaps arose from the supposition
that it was derived from the Latin terras '* land," for which
the authority of Cujas and Barbeyrac may be cited, but
which seems impossible under any recognized rules of
the Latin language. This meaning, however, seems
never to have been given to it to any considerable extent.
The word "territories" was used over and over again in
many American public acts and proceedings where it
necessarily meant an organized settled region dependent
upon an American Province.
The "Lower Counties" of Pennsylvania, so-called,
(which afterwards became the State of Delaware), ceded
by James, Duke of York, to William Penn, a few months
after the Charter of Pennsylvania was granted to him,
which were given a separate Assembly but were put
under the charge of the Governor and Council of Penn-
Imperial Nomenclature, 1 625-1 750 107
sylvania, with a representation in the Council, were uni-
formly spoken of, until they obtained statehood under
the Governor of Pennsylvania, as the ** territories be-
longing to " Pennsylvania. The invariable expression
throughout the public acts of the period was * * The Pro-
vince of Pennsylvania and the territories thereunto be-
longing."
From the year 1686 until the American Revolution,
the Governor of New York was commissioned as " Gov-
ernor in and over the Province of New York and the
territories depending thereon, in America," and the same
practice prevailed in New Jersey from 1738 until the
Revolution.
As there were both settled and unsettled regions de-
pending upon the Provinces of New York and New Jersey,
and as the regions depending upon Pennsylvania were
settled, it appears that the word "territories" had no
reference to unsettled or vacant or common land, but
rather to any region which was adjacent and appurtenant
to a province and immediately dependent upon it for its
government. The original meaning of " territory " given
by Varro seems to have been adopted in the English and
American public law, except that that which he called
" common to the colonists or farmers" was regarded as
subject to the *' town " or province, and dependent upon
it for its government — a characteristic which such com-
mon land as Varro described must necessarily have
possessed.
In the Charter of Massachusetts Bay of 1691, the alter-
native designation '' Territory" is used with the word
" Province," the expression used throughout the Charter
being " Province or Territory." The same is true of the
supplementary Charter of Carolina of 1665. It is notice-
able that in both cases the Charter annexed a region of
country to a previous grant, and brought the whole under
one provincial government. Thus, in the Charter of
io8 The Administration of Dependencies
Massachusetts Bay, "the Territories and Colonies com-
monly called or known by the names of the Colony of
Massachusetts Bay and Colony of New Plymouth, the
Province of Maine, the Territory called Acadia or Nova
Scotia and all that tract of land lying between the said Ter-
ritory of Nova Scotia and the said Province of Maine " were
erected, united, and incorporated into a ** Province or Terri-
tory," In the Charter of Carolina of 1665, the unsettled
region between the twenty-ninth and thirty-first degrees
of north latitude (now a part of Florida) was annexed to
the Province of Carolina. There was nothing in either
Charter which gave authority to the Provincial Govern-
ment to treat the annexed region as a dependency of the
Province. It has already been noticed that when New
England and New York were brought under one govern-
ment in 1686 by commission to Andros as Governor-Gen-
eral, the alternative designation " Territory" was used
with the title " Dominion." The conclusion seems
necessary that the Crown lawyers doubted the power of
the Crown, independent of Act of Parliament, to annex
part of the Crown lands, or a province, to a province or
to a colony formed under a guild charter, so as to create
the whole into a single province; and that the words ** or
territory " were added in such cases, out of precaution, so
that, in case it should be decided that the Crown had not
the power of annexation or consolidation as respects the
dependencies, the whole region would remain under the
power of the Crown as a part of the ** territory (or terri-
tories) belonging to England." This is the more prob-
able, since it was settled that the King could not revoke a
Charter, but that it could only be annulled for cause after
a judicial determination in a high court of the Realm.
Still another word which was beginning to come into
use in the British and American public law of 1750 to
express the idea of a political community in relationship
with an Imperial State was the word ** dependency."
Imperial Nomenclature, 1625-1750 109
It will have been noticed that the expression ** terri-
tories thereunto belonging" and "territories thereon
depending" were used with the same meaning. Other
examples of this are found in the Acts of the Parliament
of the Commonwealth. The '* dominions and territories
belonging to England " mentioned in the Acts of 1649
abolishing the office of King and declaring the Common-
wealthy were spoken of in the Act of 165 1, authorizing
the sending of Parliamentary troops and vessels to quell
the revolt in Virginia, as ** dependent upon England."
In the last-mentioned Act, it was declared that all the
Colonies and Plantations in America " are and ought to be
subordinate and dependent upon England, and hath ever
since the planting thereof been, and ought to be, subject
to such laws, orders or regulations as are or shall be made
by the Parliament of England." The expression " de-
pendent upon " and the word " dependency " were con-
tinuously, from the time of the Commonwealth, in use
in the English public law. There is contained in the
expression ** dependent upon " an idea of protection and
support which is absent from the expression " belonging
to." The Century Dictionary gives as the first meaning
of dependence ** the relation of a hanging thing to the
support from which it hangs *' ; and as one of its derived
meanings: ** The state of deriving existence, support, or
direction from another; the state of being subject to the
power and operation of some extraneous force ; subjec-
tion or subordination to another or to something else."
There is thus contained in the word "dependence" a
meaning of mutual obligation. Nothing hangs from
anything else unless by mutual attraction, or some other
form of mutual binding or obligation, and hence " de-
pendence " has the meaning of " reliance, confidence, or
trust; or a resting on something," and a relationship of
dependency is a relationship of trust and confidence by
the person who depends on the other person. If it be
no The Administration of Dependencies
granted that a State is a moral person and that any politi-
cal community external to a State and related to it is
likewise a moral person, so that a State is regarded as
capable of undertaking and fulfilling a trust and confi-
dence towards a political community under its control,
the word "dependency " is properly the generic name by
which to describe a political community external to a
State and subject to its superintendence and control.
The Oxford Dictionary admits this generic sense of the
word when it defines a dependency as *'a country or
province subject to the control of another country of
which it does not form an integral part." These propo-
sitions had not, however, received general acceptance in
1750, and the expression "dependent upon" a State, by
which the political community so characterized was recog-
nized as an actual or inchoate State, was used inter-
changeably with the expression "belonging to" a State,
which contained no express recognition of the statehood
of the community, but simply declared its externality to
the State to the control of which it was subject.
The fact that the expression "territories belonging to"
a State was used in the sense of "territories dependent
upon " the State is of peculiar interest because it seems
to determine the meaning of the words " territory or
other property belonging to the United States," in the
clause of the Constitution relating to the administration
of dependencies, and require that they be construed as
meaning " territory or other property dependent upon
the United States."
CHAPTER VII
THE AMERICAN CONSTITUTION OF I750
DURING the period from 1606 to 1750, there was
going on a continual process of unification of the
British Colonies in America. Though their popu-
lations were separated by local interests and jealousies,
they were all of one race, and, whatever the beginnings
of their political organization, they all tended toward a
single form — that of a province, which was recognized as
a political organism distinct from the Realm of England
or the Realm of Great Britain, and as entitled to the
largest degree of statehood consistent with the welfare
of the whole Empire.
Thomas Pownall, who was Governor of Massachusetts
in 1757 and of New Jersey in 1759, in the fourth edition
of his book The Administration of the Colonies^ pub-
lished in 1768, gives an ingenious and plausible reason
for James I. having admitted the Virginians to a share
in their own government. He says:
It was a most fortunate thing for the American Colonies
that the Island of Jersey had, by its constitution, a right to
hold a convention or meeting of the three orders or estates
of the island, in imitation of those august assemblies, known
by that or some other name, in great kingdoms and monarchies,
a shadow and resemblance of an English Parliament, in which
the King's Governor, or Lieutenant, had a negative voice; the
great business of which meetings was the raising money to
supply public occasions. ** For " (Mr. Falle says), ** as in Eng-
land money cannot be raised upon the subject but by authority
III
1 1 2 The Administration of Dependencies
of Parliament^ so here it is a received maxim that no levies
can be made upon the inhabitants but by their own consent, de-
clared by their representatives assembled in Common Coun-
cil." It was fortunate, I say, for our Colonies, that this was
the case of Jersey; for there can be no other reasonable ac-
count given, how our Colonies preserved this essential right of
Englishmen, but that it happened to be also a constitutional
right of his Majesty's foreign French-Norman subjects.
But whether England conceded to the dependencies
political personality to the greatest extent possible be-
cause it found that they could not be administered ex-
cept on this basis, or because the French-Norman subjects
of the King in the Island of Jersey had previously ob-
tained it by constitutional settlement, or because the
English sentiment for political liberty responded to and
helped on the desire of the colonists for political per-
sonality for their communities, is immaterial for the
present purposes. That the right of the people in the
subordinate parts of the English and British Empire to
participate in their own local government existed from
the year 1621, as a principle of the Constitution of the
Empire, is beyond doubt. The Imperial Constitution
was the aggregate of the dispositions made by England
and Great Britain concerning the extent to which state-
hood ought justly to be conceded by it to the respective
dependencies in the interests of the whole Empire com-
posed of England, as the Imperial State, and its depen-
dencies. The adjustments and readjustments necessary
to preserve a just balance between the interests of the
metropole and the dependencies, which the French called
the ** colonial pact," required the exercise of expert and
diplomatic powers. The problem for England was vastly
complicated by the fact that the case was really that of
the population of one political community treating with
the population of another, and not, as in France, the
King treating with the influential persons in each Colony.
The American Constitution of 1 750 1 1 3
Upon the King, therefore, as a part of his diplomatic
functions, the duty was cast of determining, under the
advice of experts, what ought justly to be the extent of
the participation of the people of the dependencies in the
government of them, as States, and of establishing those
determinations by means of constitutional settlements
made by Proclamations or Charters.
But, although there was a general recognition of the
King's functions in this respect, there was at no time
prior to 1750 any thought of denying to Parliament
a visitorial and superintending power superior to that
of the King. Even in 1630, Charles I. issued a Patent
to a guild for the colonization of the Providence Islands
in the West Indies with a proviso that it should not
take effect as a Charter until confirmed by Parliament,
and the granting, confirmation, or amendment by Parlia-
ment of Charters of colonizing guilds was not uncommon.
In 1698 a Charter was granted, by Act of Parliament, to
the English Company Trading to the East Indies, as a
* joint-stock company, which was, by Acts of Parliament
of 1707 and 171 1, consolidated with the original East
India Company, the Charter of which was granted by
Queen Elizabeth in 1600, and renewed in 1658 by Crom-
well, and in 1662 by Charles II. By the operations of
this United Company, the foundation of the British
Empire in India was laid.
The Colonies, from the outset, claimed that the power
of Parliament, when sitting as the Parliament of the
Empire, was different from its power when sitting as the
Parliament of the Realm.
In 1646, when Dr. Child and others petitioned the
Commissioners of the Lords and Commons for Foreign
Plantations for a regulation permitting religious freedom
in Massachusetts Bay, claiming that the Colony was only
a guild and hence was subject to Parliament like all the
corporations of the Realm, the General Court of the
114 The Administration of Dependencies
Colony thus stated its views of the power of Parliament
in the Empire:
1. That there is a difference between subjection to the laws
in general, as all that dwell in England are, and subjection to
some laws of State, proper to foreign plantations ;
2. That we must distinguish between corporations within
England and corporations of, but not within, England; the
first are subject to the laws of England, yet not to every gen-
eral law, as the City of London and other corporations have
divers customs and by-laws differing from the common and
statute laws of England. Again, though plantations be bodies
corporate (and so is every city and commonwealth), yet they
are also above the rank of an ordinary corporation.
In the Act of Parliament of 1649, declaring the estab-
ishment of the Commonwealth, the power of Parliament
was declared in language which did not differentiate its
powers when sitting as the Parliament of the Realm from
its powers when sitting as the Parliament of the Empire.
The Act read :
Be it declared and enacted by this present Parliament, and
by the authority of the same, that the people of England, and
of all the dominions and territories thereunto belonging, are and
shall be, and are hereby constituted, made, established, and
confirmed, to be a Commonwealth and Free State, and shall
from henceforth be governed as a Commonwealth and Free
State by the supreme authority of this nation, the representa-
tives of the people in Parliament, and by such as they shall
appoint and constitute as officers and ministers under them for
the good of the people, and that without any King or House
of Lords.
Virginia, however, after its revolt from the authority
of the Commonwealth, procured its constitutional rela-
tionship to England, — and incidentally the constitutional
relationship of all the Colonies, — to be thus expressed
in the Articles of Surrender of March 12, 165 1 :
The American Constitution of 1750 115
First : It is agreed that the Plantation of Virginia^ and all
the inhabitants thereof, shall be and remain in due obedience
and subjection to the Commonwealth of England^ according
to the laws there established, and that this submission and
subscription be acknowledged a voluntary act not forced nor
constrained by a conquest upon the country, and that they
shall have and enjoy such freedoms and privileges as belong
to the free bom people of England.
Second: That the Grand Assembly as formerly shall con-
vene and transact the affairs of Virginia, wherein nothing is
to be acted or done contrary to the government of the Com-
monwealth of England and the laws there established.
• ••••••
Seventh: That the people of Virginia shall have free trade
as the people of England do enjoy to all places and with all
nations according to the laws of that Commonwealth ; and that
Virginia shall enjoy all privileges equal with any English Plan-
tations in America.
Eighth: That Virginia shall be free from all taxes, customs
and impositions whatsoever, and none to be imposed on them
without consent of the Grand Assembly, and so that neither
forts nor castles be erected or garrisons maintained without
their consent.
This constitutional settlement, by which it was agreed
that Virginia was in a relationship of **due obedience and
subjection " to the State of England (that is, in a rela-
tionship of such obedience and subjection as was due and
proper on just principles of free Imperial government)
necessarily implied that Parliament had only the powers
which the State of England could exercise by virtue of
this constitutional settlement.
The language used in the English statutes shows that
from the time of the accession of William III., at least,
the King was regarded as the King of the dominions and
territories because England was the Imperial State on
which these dominions and territories were dependent
ii6 The Administration of Dependencies
and of which he was the representative, under the con-
trol and supervision of Parliament, for the performance
of those duties requiring expert and diplomatic knowl-
edge and action.
In the Coronation Oath established by the Act of 1688,
the King was obliged to make oath
To govern the people of this Kingdom of England and the
dominions thereunto belongings according to the statutes in
Parliament agreed on, and the laws and customs of the same.
In the Oath of Allegiance established by Act of 1707,
the person taking the oath was obliged to swear :
That our Sovereign , is lawful and rightful King
(or Queen) of this Realm, and of all other his (or her) Majesty's
dominions and countries thereunto belonging.
This last expression is noticeable as showing that
though the dependencies were then regarded as ** be-
longing to" Great Britain, they were also regarded as
"his Majesty's" dominions — that is, they were regarded
as dependencies of the State of Great Britain, in the
immediate charge of the King.
In the Navigation Act of 1696 (For Regulating Frauds
and Preventing Abuses in the Plantation Trade) Parlia-
ment took occasion to declare its power over all the de-
pendencies in Asia, Africa, and America by enacting that
All laws, by-laws, usages or customs at this time or which
shall hereafter be in practice or endeavored or pretended to
be in force or practice in any of the said Plantations which
are in anywise repugnant to . . . this present Act or to
any other law hereafter to be made in this Kingdom, so far as
such law shall relate to and mention the said Plantations^ arc
illegal, null and void to all intents and purposes whatsoever.
This was an admission that the dependencies were en-
titled to a special regime distinct from that of the Realm,
The American Constitution of 1 750 1 1 7
accompanied by a claim that Parliament might determine
the character of the regime in each particular instance.
The statehood of the Colonies was evidenced and de-
clared by the manner and form of their political and cor-
porate action. Their Local Governments ' ' enacted" their
** laws." In the Colonies, the General Court or the General
Assembly enacted the laws; in the Provinces, the Cover-
nor or the Lord Proprietor, by the authority of the Gen-
eral Assembly, enacted them. There were occasional and
temporary forms of enactment used which, if continued,
might have given ground for claiming that the King was
a part of the Provincial Government. Thus, in Mary-
land, from 1654 to 1658, the form of the enacting clause
was: "It is enacted in the name of his Highness the
Lord Protector, with the consent and by the authority of
this present General Assembly." This form of enact-
ment, which might have contained an admission that
Maryland was a commonwealth co-ordinate with Eng-
land and not a province belonging to and dependent
upon England, was stopped in 1658 when Lord Baltimore
was restored as Lord Proprietor, and the old form, ** Be
it enacted by the Lord Proprietary by and with the con-
sent of the Upper and Lower House of the General As-
sembly," was again used until the Revolution.
In 1682, immediately after Bacon's Rebellion, the form
of enactment in Virginia was: "Be it enacted by the
King's most excellent Majesty, by and with the consent
of the General Assembly." This was stopped after two
years and in 1682 the form was adopted which was not
changed until the American Revolution: " Be it enacted
by the Governor, Council and Burgesses of the General
Assembly and it is enacted by the authority aforesaid."
After Lord Baltimore was deprived of his proprietor-
ship of Maryland in 1692, the form of the enacting clause
was: ** Be it enacted by the King's most excellent Ma-
jesty, by and with the advice and consent of this present
ii8 The Administration of Dependencies
General Assembly, and the authority of the same. " This
continued until 1716, when the proprietorship was re-
stored to the heirs of Lord Baltimore. Thenceforth the
form of the enacting clause was: " Be it enacted by the
right honorable the Lord Proprietary, by and with the ad-
vice and consent of his Governor and the Upper and
Lower Houses of Assembly and the authority of the
same."
These temporary exceptions, however, only serve to
prove that it was the theory of the public law that the
public acts in the American Colonies were to be enacted
in the name of the Local Government, and not in the
name of the King or of the Home Government. The
practically universal form of the enacting clause, by
which the Governor of the Province enacted *' by and
with the advice and consent of the Upper and Lower
House of the General Assembly and by the authority of
the same," shows that, in the public law of the British
Empire, the Colonies were recognized as having state-
hood, and the State of Great Britain, as having a visi-
torial and superintending power over them.
It was thus established as the fundamental principle of
the Constitution of the British Empire for the Ameri-
can Colonies that they were political persons, — that is,
States, in the generic sense of that word, — subject, under
constitutional conditions and limitations, to the State of
Great Britain as the Imperial State or metropole of the
Empire ; that the King was the representative of Great
Britain as the Imperial State, and that Parliament was also
its representative, superior to the King. As between the
Imperial State and the dependencies, the functions of
the Imperial State were to determine the constitutions of
the dependencies and to legislate for the Imperial de-
fence and welfare ; the function of the dependencies was to
legislate for their local interests. Whatever the King con-
sented to as a proper function of the Local Governments,
The American Constitution of 1750 119
the Colonies naturally considered to be a concession made
by the Imperial State, and to be a part of the Imperial
Constitution. Theoretically, perhaps, such concessions
were regarded as in suspense for a time, so that if Parlia-
ment objected, the concessions would fail, but no oppor-
tunity ever arose to put such a theory in force, because
Parliament left substantially the whole administration of
the Colonies, except with regard to their foreign trade,
to the King in Council.
Some of these concessions had come without any
effort. The American Colonies had never been troubled
by any attempts of English trading companies to
monopolize their trade, but all chance of this was cut
oflf by the declaration by the House of Commons by
resolution in 1692, against the power of the King to
create monopolies by charter for trading in the depen-
dencies. • Thenceforward all monopolies had to be cre-
ated by Act of Parliament, and Parliament granted none
in America.
The concession by the King in Council in 1735 that
the Colonies should have the right of taxation, however,
came as the result of a long struggle.
The Navigation Act first enacted by the Parliament
of the Commonwealth in 165 1, which gave England and
English ships the monopoly of the trade with the Amer-
ican Colonies, was re-enacted under Charles II. in 1663,
and a more elaborate statute covering the same ground
was enacted under William III., which carried out the
principles of the ** colonial pact " and the ** mercantile
system" to the full. These Acts, of course, made it
impossible for the King to make any concessions in this
direction. Parliament had covered the ground with re-
spect to the regulation of the external trade of the
Colonies, and so long as these statutes existed, he could
make no regulation inconsistent with them. The Colo-
nies strenuously objected to the Navigation Acts until
I20 The Administration of Dependencies
•
the time of William III. Thenceforward they acquiesced
in them, apparently being convinced, as the result of the
very careful consideration which all constitutional ques-
tions received in England upon the accession of William
III., that the mercantile system involved no violation of
their constitutional rights, and that the levying of im-
posts for the purposes of the trade and navigation
of the Empire was a different thing from the levying
of taxes for the ordinary purposes of defence and
welfare.
Though the question of the right of England, as the
Imperial State, to levy taxes in the Colonies was raised
in the earliest times, the first general agitation of the
question throughout the Colonies was initiated by the
Province of Massachusetts Bay in 1692, which refused,
under claim of authority given in its charter to levy
taxes and direct the appropriation of the proceeds, to
grant a permanent salary to the Governor. It claimed
it had the right to pay him what it chose, by an an-
nual grant. The English Government objected, both be-
cause this implied the exclusive power of the Colony to
legislate by way of local taxation, and because it made
the Governor dependent on the favor of the Legislature.
Other Colonies followed the example of Massachusetts
Bay, and by 1725 the practice of paying the royal Gov-
ernors such sums as the General Assemblies (that is, the
Houses of Representatives) saw fit, had become common.
The House of Commons, on petition from the Legisla-
ture of Massachusetts Bay in 1732 requesting that they
consent to this arrangement, refused in a brusque reso-
lution which declared the request to be "frivolous " ; but
nevertheless the King in Council yielded the point in
1735, and no further attempt was made to tax the Colo-
nies or to dictate to them how they should tax themselves
for nearly thirty years, they deciding, on requisition made
by the King in Council, the amount, manner, and time
The American Constitution of 1750 121
of payment, and enacting the law providing for the neces-
sary taxation.
Other rights which the Colonies claimed were adjusted
by a compromise or left unsettled as being so close to the
border-line as to require adjudication in each case as it
arose.
The Colonies had during all this period objected to all
interference of the English and British Government in
affairs that they regarded as properly of local importance
and interest. When the Post Office establishment was
extended to the Colonies in 1707, they almost uniformly
took upon themselves to regulate the manner in which
the post-riders and postmasters should conduct them-
selves. When the British Government tried to enforce
the Act of Parliament of 1710, which made it a penalty
to cut or injure pine trees suitable for ships' masts grow-
ing on land not appropriated to private ownership, they
made prosecution and punishment so difficult that the
law became a dead letter. When the British Govern-
ment tried, in 1741, to stop the issue of bills of credit by
the Colonies, by compelling Massachusetts Bay to tax it-
self to pay of! all its bills then outstanding, the situation
was made so difficult that the British Government al-
lowed the matter to drop.
That the individual in the American Colonies had all
the rights, privileges, and immunities as against the Gov-
ernment that every inhabitant of England or Great Britain
had, was undoubted. The right was secured by every
Colonial Charter, and the Charters were regarded as
merely declaratory of the existing law.
The British Imperial Constitution for the American
Colonies and Provinces, as it existed in 1750, may,
therefore, thus be summarized :
1st. Concerning the political relationship between
Great Britain and the Colonies:
It was adjudged and declared by Great Britain and
122 The Administration of Dependencies
assented to by the Colonies that they were dependent on
Great Britain, and that Great Britain, as the Imperial or
Sovereign State, and the Colonies, as dependencies, or
constitutionally subject States, constituted a single politi-
cal organism known as the British Empire; that Great
Britain, acting through the King in Council or Parlia-
ment, had power to make constitutions for or constitu-
tional settlements with the Colonies, respecting their
wishes as far as it deemed consistent with the common
interests. In the infancy of the Colonies the inhabitants
were little consulted, as it was usually impossible for
them, owing to their lack of homogeneity and the
sparseness of their settlements, to have any definite
ideas as a community on the subject of their government.
As the Colonies increased in compactness of organiza-
tion, the form of government was established by Charters
or Proclamations, which evidenced the constitutional
settlements made from time to time between the King
in Council and the Agents or General Assemblies of the
Colonies.
2d. Concerning the respective spheres of jurisdiction
of the Imperial State and the Colonies :
It was adjudged and declared by Great Britain and
assented to by the Colonies that Great Britain, through
its King, represented the whole Empire in the matter of
making war and peace, and in all dealings with foreign
States; and that Great Britain, through the King in
Council, or through Parliament, or through any other
governmental agency specially appointed for the purpose,
had power to administer the common interests of the
whole Empire, and that the Colonies had the exclusive
power to administer their local interests in those respects
in which they did not conflict with the interests of the
Empire, under the condition that their local adminis-
tration should conform to the equity of the laws of Great
Britain — that is, should not be repugnant to it, but
The American Constitution of 1750 123
should be consistent with it as nearly as the local circum-
stances and conditions would permit; that Great Britain,
through the King in Council, or through Parliament, had
powers of administration reasonably incidental to the
preservation of the common welfare, even though such ad-
ministration extended to subjects which would ordinarily
be within the sphere of jurisdiction of the Colonies, pro-
vided that such dispositions should not be repugnant, but
agreeable, as nearly as might be, considering the circum-
stances and conditions of the whole Empire, to the laws
and customs prevailing in the Colonies; that, for the
purpose of preventing the intrusion of the Colonies into
the sphere of jurisdiction of Great Britain, it was to be
represented in the Colonies by a royal Governor with
power of veto and sometimes by a royal Council, and
that the King in Council should also have the power to
veto Colonial legislation; and that, for the purpose of
preventing intrusion by Great Britain into the sphere of
jurisdiction of the Colonies, the petitions of their Gen-
eral Assemblies were to be considered and adjudicated
upon by the King in Council and by Parliament, and
the Agents of the Colonies were to be heard by the
Board of Trade and Plantations and the Committee of
the Privy Council for Plantation Affairs, before any
action affecting the local interests of the Colonies became
final.
The power to legislate in the common interests in-
cluded the right to regulate foreign trade and the trade
with the Indians, and probably also the right to regu-
late intercolonial trade (though this latter power seems
not to have been exercised after the time of Charles II.
and James II., owing to the prevalent belief in England
that the dependence of the Colonies on England could
be secured only by keeping them divided and foster-
ing their jealousy of each other); to coin money and
regulate its value, and fix the standard of weights and
1 24 The Administration of Dependencies
measures ; to establish an Imperial postal service ; to con-
stitute Imperial and Colonial Courts, unless the right to
establish Colonial Courts were granted to a Colony in its
Charter ; to establish a Supreme Court of Appeal in Eng-
land for the Colonies (the Court being a Judicial Com-
mittee of the Privy Council, which was evidently regarded
as the proper body to hear Colonial causes, since such
causes had to be decided not by the laws of England
but by the equity of those laws) ; to define and punish
piracies and felonies on the high seas and offences against
the law of nations ; to declare war, grant letters of marque
and reprisal, and make rules concerning captures on land
and water ; to provide and maintain an army, navy, and
fortifications for the Imperial defence, and to have power
over the militia of the Colonies when raised by the Colo-
nies for the Imperial defence; to regulate the mode of
proof of the acts, records, and proceedings of a Colony,
in another Colony ; and to provide for the extradition of
criminals from one Colony to another.
Among the matters of common interest concerning
which the Colonies could act when authorized, were the
entering into treaty, alliance, or confederation with other
Colonies; granting letters of marque and reprisal; coin-
ing money ; emitting bills of credit ; or making anj^hing
other than gold and silver coin a legal tender in payment
of debts.
The right to tax for the Imperial defence and welfare
had never, up to 1750 (or until 1764), been exercised by
Great Britain. Its rights in this respect had, up to that
time, been confined to an adjudication by the King in
Council, after hearing the Agents of the Colonies, of the
amounts of money or the numbers of troops which ought
justly to be supplied by each Colony, and to making
requisitions upon the respective Colonies, which re-
sponded through action taken by their General Assem-
blies for raising the money or troops.
The American Constitution of 1750 125
3d. Concerning the rights of individuals in the Colo-
nies against the Imperial and the Colonial Governments.
It was adjudged and declared by Great Britain and
assented to by the Colonies that neither the Imperial nor
the Local Governments were to deprive the citizens of
the Colonies of the equal protection of the laws (and
hence were not to grant any monopoly except for patents,
copyrights, etc.) or deprive any person of life, liberty,
or property without due process of law. Due process of
law, as against the Imperial Government, consisted in
the Colonies being heard, through their Agents, acting
both as diplomatic representatives and as attorneys at
law, by the Board of Trade and Plantations and the
Committee of the Privy Council for Plantation Affairs,
before any action of the State of Great Britain depriving
them, or any of their inhabitants, of life, liberty, or
property, became final.
Under this Constitution, Great Britain and the Colonies
were Member-States of a Federal Empire, in which Great
Britain was the Imperial State and Central Government
which adjudicated upon the limits of its own jurisdiction
and concerning its action within these limits, after advis-
ing with the Colonial Agents, who acted as the represen-
tatives of the Colonies at the Court of the Imperial State.
The usual instrumentality through which Great Britain
made these adjudications or dispositions was the King,
assisted by the Committee of the Privy Council for Plan-
tation Affairs as a Secretarial Board or Chancellery, and
by the Board of Trade and Plantations as an under-
Secretarial Board or sub-Chancellery, but the adjudica-
tions of the King were reviewable and controllable by
the Parliament, composed of King, Lords, and Commons,
acting in conformity with the conditions and trusts which
rested upon the State.
The whole political organism composed of Great Britain
and the Colonies was a Federal Empire, and not a
126 The Administration of Dependencies
Federal State, because the Central Government was a State
and not an elected body of men. The powers of Great
Britain as the Imperial State and Central Government of
the Federal Empire were essentially conditional, — the
condition being that it should adjudicate the limits of its
own jurisdiction, and act only within the limits so ad-
judicated. It occupied a position of trust of the highest
nature, as does every Imperial State in its Federal
Empire.
It cannot be said that the existence of the Federal
Empire was ever admitted. It could not have been,
since the Federal Empire and the Federal State had not
yet been recognized and named. Writers on the general
public law had not advanced beyond calling such political
organisms * * Systems of States. " It can be said, however,
that the Federal Empire existed in fact and that the
Constitution above described was, in fact, its funda-
mental law. That there were acts of the English and
British State and its Government during this period
which were inconsistent with this Constitution is unde-
niable, but they were few in comparison with the g^eat
body of acts which were explicable only on the theory
of the existence of such a Constitution.
The Constitution as it existed in 1750 continued in
force unchanged until the close of the French War in
1763. In all the negotiations between the Colonies and
Great Britain preceding the Revolution, when a claim
was made by or in behalf of the Colonies that they be
restored to their constitutional situation, it was invari-
ably the situation as it existed at the close of the war in
1763 that was intended. In speaking of the harmony
and good feeling which it was hoped might be restored
as the result of the negotiations, it was the harmony and
good feeling which existed at the close of the war in 1763
to which the words referred. It would seem, therefore,
on first glance, that the pre-Revolutionary Constitution
The American Constitution of 1750 127
of the British Empire in America ought to be called the
Constitution of 1763, and not the Constitution of 1750.
Inasmuch, however, as the acts on both sides which were
regarded, in the time of the Revolution, by each of the
contending parties, as attempted infractions of its consti-
tutional rights, began in the year 1750, it seems more
proper to describe the Constitution as of the last year
before any alleged infractions of it took place.
In the year 1750, the Constitution of the British Em-
pire in America reached its greatest efficiency. During
the period from 1735 to 1750, the relations of the Colo-
nies with Great Britain were better than they had been
at any previous time ; and, though seeds of discord were
sown between 1750 and 1763, yet the close fellowship and
the pursuit of a common end during the war with France
drew tighter the bonds of friendship. The Colonies were
devoted to the connection with Great Britain, — which
was, to all intents and purposes, a connection with Eng-
land,— and no one appears to have dreamed that there
was anything which was not dignified, just, and proper
in their relationship to that State.
CHAPTER VIII
REALM OR EMPIRE, 1750-1765
AFTER the passage of the Act of Settlement of
1689, the King, as a part of the Parliament, con-
sisting of King, Lords, and Commons, was still
looked up to by the people as the leader of political
thought and action. It was equally repugnant to the
ideas of William III. and of the people that the power
of the King over legislation should be reduced to a mere
power to veto bills that had passed both Houses. It was
agreed by all parties that the King ought not only to
have a part in the enactment of legislation, both consti-
tutional and ordinary, but that he ought, as the expert
part of the Government, to have the power of initiation
and an equal voice with each of the two Houses in the
framing of enactments. In the actual working of the
system established by the Act of Settlement, it was
necessary to the maintenance of the King's leadership
that he should succeed in persuading the House of Com-
mons to adopt any new measures of legislation initiated by
him — the House of Lords acting usually with the King,
but also checking both the King and the Commons.
He could no longer ignore the Commons, or force them
to act as a mere deliberative and registering body.
Legislation, therefore, had to be a matter of agree-
ment between the three parties, — King, Lords, and
Commons, — and, in order to consummate the agree-
ment, there was need of the services of a body of per-
sons, skilled in government and in party politics, whose
138
Realm or Empire, 1750-1765 129
function it was to devise measures on which all the
three parties might unite, and to carry the measures
through to agreement, by argument and persuasion.
There was at first no open recognition of this body, and
it was called the Cabinet Council, — that is, the inner
and confidential Council which met in the Cabinet^ or
private apartment of the King, to devise measures of
legislation and arrange for carrying them through both
Houses, as distinguished from the Privy Council, which
met in the Council Chamber, and deliberated concerning
the purely executive acts of the King. The members of
the Cabinet Council were called the King's Ministers, —
that is, the King's Servants. Later on, when it was real-
ized that this body was an absolutely necessary means
to consummate the necessary agreements concerning
legislation between the King, Lords, and Commons, it
came to be recognized as an institution, and received
the abbreviated name of ** The Cabinet." Though the
members of the Cabinet were always Privy Councillors,
the functions of the two bodies were so different — the
Cabinet being organized to actually take part in and
control legislation, while the Privy Council existed only
to advise the King in his purely executive acts — that
the two bodies were entirely distinct and separate from
one another. As the functions of the Cabinet were ex-
pert and confidential to all the three parties, — King,
Lords, and Commons, — it followed that unless it could
devise measures on which an agreement could be
reached, the only way was for the parties to discharge
It and appoint another. If, however, one of the parties
could dictate when it should be discharged, that party,
in effect, could dictate legislation.
Shortly prior to 1750, the House of Commons had
claimed that it had the right to discharge the Cabinet
when the measures advanced by it did not meet the ap-
proval of a majority of the House, and the Cabinet had
15^ The Administration of Dependencies
begun the piactice of resigning under socii didunstances.
It was thus on the way to bccosoe simply tlK consulta-
tive Council of the House of Commons, to pccpsuc meas-
ures agreeable to that House and to cany them through
with the King and the House of Lords by persuasion and
argument. As things stood in 1730, the signs of the
times pointed to a complete revolution of exactly this
sort, which, when accomplished, would substitute for gov-
ernment by King, Lords, and Commons, the government
of the House of Commons in Council, chrrkcd by the
King and the House of Lords, who would, however, have
little more than deliberative and roistering functions.
Up to the time of the death of George II., in 1760,
no definite trial of strength had occurred between the
King and the Commons. George III., however, deter-
mined to bring the question to an issue, and undertook
to oppose the threatened attachment of the Cabinet to
the House of Commons by fair means or foul, and to
establish a government by King in Cabinet, not like that
of the King in Council either in the traditional sense or
in the sense of the Stuarts, who honestly believed that
they had the right to legislate as well as to execute the
statute and the unwritten law, but by rewarding his allies
and ostracizing his opponents. No doubt he and the
whole Tory party were alarmed to see the reins of gov-
ernment slipping out of the hands of the Crown, as the
expert part of the English and British Government, and
being caught up by the House of Commons, the popular
and non-expert part. Perhaps his and their position
may best be described as one which they considered to
be necessitated by the fact that the House of Commons,
in claiming the right to discharge the Ministry when it
disapproved any measure proposed by them, was in a
state of revolution against the Government, that there
hence existed a state of political warfare between the
King and that House, and that all was fair in war.
Realm or Empire, 1 750-1 765 131
If the Government of Great Britain was to be a
government by the King, it logically followed that
the inhabitants of the Realm of Great Britain and
the inhabitants of the dependencies must constitute a
single political organism. The House of Commons be-
ing, in the estimation of George III., a mere deliberative
and registering body, at least so long as the warfare be-
tween him and them continued, there appeared to him
to be no reason why the American Colonies should not
be satisfied with the theory that the power of Parliament
in the Colonies was unlimited and unconditional, since
Parliament, in his view, was merely himself, assisted by
the House of Lords and the House of Commons, as de-
liberative and registering bodies. But, if the Colonies
were not satisfied, the exigencies of the political situa-
tion at home were such that he could not pay any atten-
tion to their complaints. An admission by him that the
popular Assemblies of the Colonies had the right to
control their Governments would have been an admis-
sion that the British House of Commons had the right
to control the British Government. It was a logical
necessity for the King and the Tory party, in the po-
litical situation then existing in England, in case the
Colonial Assemblies claimed any other power than that
of mere registration of the measures instituted by the
King and deliberated and registered by the Lords and
Commons, to reduce the Colonies to subjection by
force.
On the other hand, the antagonism between the King
and the House of Commons led the advocates of the
claims of that House to be very jealous of all its preroga-
tives, so that many of the members who were opposed
to the claims of the King vehemently upheld the un-
limited and unconditional power of Parliament over the
American Colonies. Thus the Colonies were between
two contending factions in the British Government, both
132 The Administration of Dependencies
working together to annul all the claims of the Colonies
which could possibly interfere with the prerogatives
claimed by either of*them.
Both factions listened eagerly, therefore, to any argu-
ment, however specious, which went to show that the
power of the King and Parliament was exactly the same
in the American Colonies as in the Realm of Great Brit-
ain, and there were not wanting advocates who were ready
to present arguments in favor of this theory.
The proposition that the powers of the King and
Parliament were the same in the Colonies as in Great
Britain meant, however, that the position which the
English Government had taken in the time of the Com-
monwealth, and in which it had persisted for a century
and more, that the Colonies were " dominions and terri-
tories belonging to England or Great Britain," in the
sense of being external to and dependent upon the
body and personality of that State, was a mistake, —
that the old distinction between the Realm and the
Empire was unfounded, — that there was no British Em-
pire,— and that there was only a British Realm, of which
Great Britain was an integral part and the American
Colonies another integral part.
On this theory, it was necessary to prove that the non-
representation in the British Parliament of the inhabitants
of the Colonies, or the impossibility, by reason of natural
conditions, of their being effectively represented, did
not differentiate their political status from that of the
inhabitants of Great Britain. The advocates of the the-
or>' ai^ued that the people of the Colonies were no worse
off than the disfranchised men of Great Britain (of
whom there were many at that time, owing to the crude
and unsystematic arrangements established by statute
relating to the representation in the House of Com-
mons\ and the women, children, idiots, convicts, and
paupers of Great Britain, who were ** virtually rcpre-
Realm or Empire, 1 750-1 765 133
sented" by the Parliament, composed of King, Lords,
and Commons.
The first Act of Parliament which showed signs of the
tendency of Parliament to treat the American Colonies
as parts of the Realm, and to deny the obligation toward
them to which Great Britain was justly subject as the
Imperial State on which they were dependent, was the
Act of 1750, by which, upon the inadequate considera-
tion of admitting pig iron and bar iron from the Colonies
into Great Britain free of duty, the erection, in any of
the Colonies, of any *' engine for slitting or rolling iron,
or any plating forge to work with a tilt-hammer, or
any furnace for making steel " was forbidden. A penalty
of two hundred pounds was provided for violation of the
Act, and any mill, furnace, or forge erected in violation
of its provisions was declared a common nuisance which
it was made the duty of the Governor to abate. This
Act was doubtless justified, by those who believed in
the existence of the Empire, as a proper adjustment of
the terms of the '' colonial pact" as the French called
it, or as necessary under the ** mercantile system," as
it was then understood. All the European metropoles
took upon themselves to treat their Colonies in this way.
If the metropole restricted itself in any way, this was re-
garded as a justification for almost any restriction of the
dependency in favor of which the metropole restricted
itself.
But even if the Act of 1750 be conceded to be some-
what ambiguous concerning the theory on which Parlia-
ment legislated for the American Colonies, there is less
doubt about the Act of 1751, by which the Colonies of
Massachusetts, Rhode Island, Connecticut, and New
Hampshire were forbidden to issue bills of credit except
to meet the current expenses in anticipation of taxes or
in case of emergency, or to make any bills of credit a
legal tender. That this Act was not based on the theory
134 The Administration of Dependencies
that the Colonies could not constitutionally issue money
is clear from the fact that it applied only to certain of
them, and that Parliament, after having enacted in 1763
an Act forbidding any Colony to make its bills of credit
a legal tender, passed another Act in I770» which allowed
New York to issue bills of credit on loan paper and make
them a legal tender.
Both these Acts were, of course, open to explanation
as legislation of the Imperial State for the common wel-
fare, since one purported to be a regulation of trade and
the other a regulation concerning the currency ; but they
were both arbitrary measures (the Colonies not being con-
sulted), and were local as well as general, in their effect;
and hence might be claimed as precedents for the exer-
cise of unconditional and unlimited power. For this
reason, they provoked and alarmed the Colonists.
Almost at the same time that Parliament, by thus
dictating to the Colonies regulations respecting their
manufactures and internal commerce, began to treat
them as integral parts of the Realm, "virtually repre-
sented " in Parliament, George II. began to act on the
same principle. In 1752, by his order in Council, the
Lords of Trade sent out instructions to all the Colonial
Governors requiring them to submit full reports on all
subjects and especially on all matters in which the Colo-
nies were claimed to be violating the rights of the King
or Parliament, and their recommendations concerning
the action which ought to be taken.
While the answers of the Colonial Governors to these
instructions were under consideration by the British
Government, the war with France broke out, and, as it
was evident that the British possessions in America would
be attacked, it became important to Great Britain to
keep the good-will of the Americans and of the Indian
tribes which occupied the region between the French
and the British possessions. Consequently all thought
Realm or Empire, 1 750-1 765 135
of bringing the Colonies into the proper subjection of
persons ''virtually" represented had to be given up,
and measures had to be taken to induce the Colonies to
put themselves in a position to effectually co-operate
with Great Britain in negotiating with the Indian tribes
and in defending the American frontier. In order to
accomplish this, the British Government instructed the
Colonial Governors to have the Colonies send repre-
sentatives to the meeting with the Indian chiefs ap-
pointed to be held at Albany in July, 1754, who should
assist in making a treaty of alliance with the Six
Nations, and take measures for the general defence.
Massachusetts Bay, Pennsylvania, New York, Connecti-
cut, Rhode Island, and New Hampshire were represented.
The delegates so met, all of whom were men of promi-
nence in their respective Colonies, apparently without the
least thought that they were acting in any way in viola-
tion of the purpose for which they were assembled,
agreed upon a " Plan of Union," which proposed to the
different Colonies ** that humble application be made for
an Act of the Parliament of Great Britain, by virtue of
which one General Government may be formed in Amer-
ica, including all the said Colonies, and under which
Government each Colony may retain its present consti-
tution, except in the particulars wherein a change may
be directed by the said Act."
The Plan of Union related to only two subjects — the
administration, as dependencies of the American Colo-
nies, of the Indian tribes and the settlements of whites
in the Western country ; and the defence of the Colonies.
There was to be a President-General, to be appointed
and supported by the Crown, and a Grand Council of
delegates from the Colonies, appointed by their General
Assemblies. The power of the President-General and
Grand Council to enact laws (subject to the approval of
the King in Council) and to levy taxes was thus worded :
136 The Administration of Dependencies
That the President-General with the advice of the Grand
Council, hold or direct all Indian treaties in which the general
interest of the Colonies may be concerned; and make peace
or declare war with Indian nations. That they make such
laws as they judge necessary for the regulating of all Indian
trade. That they make all purchases from Indians for the
Crown, of lands not now within the bounds of particular
Colonies, or that shall not be within their bounds when some
of them are reduced to more convenient dimensions. That
they make new settlements on such purchases by granting
lands in the King's name, reserving a quit-rent to the Crown
for the use of the General Treasury.
That they make laws for regulating and governing such new
settlements, till the Crown shall think fit to form them into
particular Governments.
That they raise and pay soldiers, and build forts for the
defence of any of the Colonies, and equip vessels of force to
guard the coasts and protect the trade on the ocean, lakes, or
great rivers, but they shall not impress men in any Colonies
without the consent of its Legislature. That for these pur-
poses they have power to make laws and lay and levy such
general duties, imposts or taxes, as to them shall appear most
equal and just, considering the ability and other circumstances
of the inhabitants in the several Colonies, and such as may be
collected with the least inconvenience to the people, rather
discouraging luxury, than loading industry with unnecessary
burthens.
At the same time that the Plan of Union was adopted,
the delegates also adopted a " Representation on the
State of the Colonies."
In the Representation it was proposed :
That the bounds of these Colonies which extend to the
South Sea, be contracted and limited by the Allegheny or
Appalachian Mountains ;
That measures be taken for settling from time to time Colo-
nies of His Majesty's protestant subjects, westward of the
Realm or Empire, 1 750-1 765 137
said Mountains, in convenient cantons to be assigned for that
purpose; and
That the patentees or possessors of large unsettled territories
be enjoined to cause them to be settled in a reasonable time
on pain of forfeiture.
The plain purpose of both the Representation and the
Plan of Union was that, as soon as the limits of the Amer-
ican General Government should be fixed by the order of
the King in Council or by Act of Parliament, the Ameri-
can General Government should administer the settle-
ments in the Western region as its dependencies. It is
true that the Plan of Union provided that this power
was to exist only until the Crown should think fit to form
the new settlements into particular Governments ; but the
important thing is that it should have been proposed to
the British Government that an American General Gov-
ernment should constitute the Imperial Government of
the Western dependencies, even for the purposes of tem-
porary administration.
If there is any doubt that the framers of the Plan of
Union intended that the new Colonies in the transmon-
tane region should be American, and not English Colo-
nies, it is removed by what Franklin, the author of the
plan, in his pamphlet, published in 1754, entitled Rea-
sons and Motives on which the Plan of Union was Formed^
said about the provisions which permitted the Governor
in Council to make new settlements on land purchased
from the Indians. His words were:
It is supposed better that there should be one purchaser
than many; and that the Crown should be the purchaser, or
the Union in the name of the Crown. By this means the bar-
gains may be more easily made, the price not enhanced by
numerous bidders, future disputes about private Indian pur-
chases, and monopolies of vast tracts to particular persons,
(which are prejudicial to the settlement and peopling of the
138 The Administration of Dependencies
country), prevented; and the land being again granted in
small tracts to settlers, the quit-rents reserved may in time
become a fund for the support of government, for defence of
the country, ease of taxes, etc.
Strong forts on the Lakes, the Ohio, etc., may at the same
time that they secure our present frontiers, serve to defend
new Colonies settled under their protection; and such Colonies
would also mutually defend and support such forts, and better
secure the friendship of the far Indians.
A particular Colony has scarce strength enough to extend
itself by new settlements, at so great a distance from the old;
but the joint force of the Union might suddenly establish a
new Colony or two in these parts, or extend an old Colony to
particular passes, greatly to the security of the present fron-
tiers, increase of trade and people, breaking off the French
connection between Canada and Louisiana, and the speedy
settlement of the intermediate lands.
The power of settling new Colonies is, therefore, thought a
valuable part of the plan.
Referring to the provision in the Plan of Union author-
izing the President-General and Council " to make laws
for regulating and governing such new settlements, till the
Crown shall think fit to form them into particular Govern-
ments," Franklin said:
The making of laws, suitable for the new Colonies, it was
thought, would be properly vested in the President-General
and Grand Council, under whose protection they must, at first,
necessarily be, and who would be well acquainted with their
circumstances, as having settled them. When they are be-
come sufficiently populous, they may by the Crown be formed
into complete and distinct Governments.
The Plan of Union plainly provided for the establish-
ment of an American Empire, dependent on the Imperial
State of Great Britain, that is to say, for the establish-
Realm or Empire, 1 750-1 765 139
ment of an imperium in imperio^ or sub-Empire. The
twelve Colonies then existing (Delaware being then a
dependency of Pennsylvania) were to constitute the sub-
Imperial State or the sub-metropole. As a plan for
establishing an American sub-Empire, it was " complete
in itself," to quote the sarcastic language of the Lords of
Trade in their report upon it to the Privy Council, be-
cause it gave the General Government complete powers
for the administration of the dependencies in the West-
ern country. As a plan for a General Government for
all the common purposes of the Colonies, however, it was
incomplete, since the General Government was given no
powers to legislate for the common convenience and
welfare except as regards the administration of depend-
encies and the common defence. Had the Plan been
adopted, the separate Colonies would have had to make
such arrangements regarding all other matters of com-
mon interest as could be brought about by diplomatic
negotiation between them, subject to the approval of the
King in Council.
The words used to describe the power which the Gen-
eral Government, composed of the President-General
and Grand Council assembled as the Legislature of the
sub-Empire, was to have in the administration and gov-
ernment of the dependencies of the sub- Empire, are
noticeable. They were to be given power by Act of
Parliament to make laws " for regulating and governing
such new settlements," till the Crown should think fit to
form them into particular Governments.
That they were to have this power only till the Crown
acted, shows that they were to act in lieu of the Crown,
and therefore, in the same way and under the same ob-
ligations as the Crown would have acted. But if the
power had been granted permanently instead of tem-
porarily, the expression '* for regulating and governing
such new settlements " would have made it certain that
I40 The Administration of Dependencies
they were to act in lieu of the Crown and under its obli-
gations and restrictions.
The word ** regulate" had, at this time, come into
considerable, though not universal use in the English
public law to describe the supreme power in the State,
when exercised expertly. In the first English translation
of Vattel's Law of Nations^ made in 1760, the passage
relating to the power of the State, the original of which
is quoted above on page 13, is thus rendered:
The country inhabited by one nation ... is the settle-
ment of the nation, and it has a proper and exclusive right
to it.
This right comprehends two things: i. The domain^ in
virtue of which the nation alone may use this country for the
supply of its necessities, and may dispose of it in such a man-
ner and derive from it such advantages, as it thinks proper.
2. The empire^ or the right of sovereign command, by which
the nation ordains and regulates at its pleasure everything that
passes in the country.
By comparing this translation with the original, it will
be observed that the expression disposer de is translated
" dispose of *' when it refers to what Vattel calls " the
domain " of a state, and " regulate " when it refers to
what he calls " the empire.'* A " regulation," therefore,
in the view of the translator, was evidently a disposition
relating to the actions of persons, as distinguished from a
disposition relating to land or things. Just how the dis-
tinction arose can only be surmised. A reason which is
at least plausible is that the expression " dispose of*
had by process of derivation come to be used in such a
way as made its meaning somewhat ambiguous, as applied
to persons and their actions. One of these meanings
(which the expression still has) was that of transferring
control or ownership by will, by sale, or by gift. Evi-
dently this meaning was derived from a supposed re-
Realm or Empire, 1 750-1 765 141
semblance between a disposition of property by will and
an alienation of the title to property. A will is a disposi-
tion of property in the sense of a setting one's property
in order for death, but as it also works a transfer of the
title, the two ideas seem to have become confused, so
that it has become customary, in ordinary usage, to
speak of disposing of property when one means merely
selling or giving it away, and intends to convey no idea
of setting his affairs in order by the transaction. Besides
this meaning, also, it came to have, by derivation from
its meaning of disposing or adjudicating upon problems
relating to human action, the meaning of " determining
the fate of" persons, and by still further derivation of
" destroying the existence of " persons or *' getting rid
of " them. These curious changes of meaning had never
been allowed in the public law, but they had evidently
become so well fixed in popular usage in 1760 that the
word ** regulate '* was preferred by some writers on the
public law as applied to the power of the King over
the actions and affairs of persons, natural and corporate,
instead of *' dispose of." While the usage was not fixed,
the acts of the Crown or Parliament relating to land and
things, or to communities when regarded as objects
without personality, seem generally to have been spoken
of as " dispositions," and the acts relating to persons,
and to communities when regarded as legal and political
persons, as *' regulations.**
By the Treaty of Paris of February 10, 1763, Canada
and all the region east of the Mississippi and certain isl-
ands of the West Indies were ceded to Great Britain.
By Proclamation in Council, of October 7, 1763,
George III. ** erected . . . four distinct and separate
Governments, styled and called by the names of Quebec,
East Florida, West Florida and Grenada,*' which cov-
ered every part of the region ceded or relinquished by
the Treaty which was unmistakably outside the charter
142 The Administration of Dependencies
limits of any of the American Colonies, and, after so
erecting these Governments, forbade the Colonies to
make or allow any settlements in the remainder (which
they claimed was within their charter limits) beyond the
heads of the rivers which emptied into the Atlantic — that
is, beyond the ridge of the Allegheny or Appalachian
Mountains. As the Atlantic slope of this range has a
maximum width of two hundred miles, and a minimum
width (near New York) of only a few miles, it is evident
that this restriction of the boundaries of the Colonies was
a very serious matter. Added to this, the new Govern-
ments erected by the Proclamation were without self-
government and under the immediate control of the
Crown, from which it was natural to suppose that all
other Governments erected by the Crown in the Western
country would, at the outset, at least, be of the same kind.
Thus the American scheme for a sub-Empire was an-
nulled, and George III. declared that there should be
only one Realm or Empire, and that the Realm or Em-
pire of Great Britain.
This Proclamation incidentally established the policy
of the British Government respecting the treatment of
the Indian tribes. They were described as *' the several
nations or tribes of Indians, with whom we are connected
and who live under our protection." The lands occupied
by them were described as " parts of our dominions and
territories reserved to them, as their hunting grounds."
They were thus declared to be dependencies of Great
Britain. The method of administration of these un-
civilized dependencies outlined in the Plan of Union as
the course proper to be followed by the General Govern-
ment of the American sub-Empire was adopted as the
method to be pursued by the Central Government of the
British Empire. Purchases by private persons from
the Indians or from Indian tribes were forbidden : trade
with them, though free to any one who chose to engage
Realm or Empire, 1 750-1 765 143
in it, could be carried on only under a royal license
issued by a royal Governor and upon giving security for
the observance of " such regulations as we shall at any
time think fit, by ourselves or commissaries, to be ap-
pointed for that purpose, to direct and appoint for the
benefit of the said trade." AH purchases of Indian lands
were to be by the Crown. This was an excellent policy
for the Indian tribes, but it was, in the opinion of the
Americans, a violation of their constitutional rights as
parts of the British Empire, secured to them by their
Charters, to administer the affairs of these tribes as if they
were dependencies of the Colonies.
In the Annual Register of 1763, which is said to have
been edited by Edmund Burke, the following comment
is made upon this part of the Proclamation, which is in-
teresting as showing the difficulty which even the best
informed people of England had in understanding its full
purport, or at least their unwillingness to assume that the
Proclamation was a part of a design of the British Govern-
ment to alter the constitutional status of the American
Colonies. The passage is interesting, also, because it
describes the power of the Crown over the Western
region as a power of ** disposition." It was as follows:
The reader will observe, and possibly with some surprise,
that in this distribution, much the largest, and perhaps the
most valuable part of our conquests, does not fall into any of
these Governments. . . .
Many reasons may be assigned for this apparent omission.
A consideration of the Indians was, we presume, the principal,
because it might have given a sensible alarm to that people, if
they had seen us formally cantoning out their whole country
into regular establishments. . . .
Another reason^ we suppose^ why no disposition has been made
of the inland country^ was, that the Charters of many of our old
Colonies give them, with very few exceptions, no other bounds
to the westward but the South Sea,
144 The Administration of Dependencies
On April 5, 1764, Parliament, by the procurement of
the King and the Ministry, enacted the Tariflf Act of
1764, imposing duties on sugar, molasses, syrups, indigo,
coffee, wines, cambrics, lawns, silks, silk stuffs, and cali-
coes, imported into the Colonies, with a proviso that the
net proceeds of the duties should
be paid into the receipt of his Majesty's Exchequer, and
entered separate and apart from all other moneys paid or pay-
able to his Majesty, his heirs or successors; and be there
reserved to be, from time to time, disposed of by Parliament
towards defraying the necessary expenses of defending, pro-
tecting and securing the British Colonies and Plantations in
America.
The Tariff Act of 1764 followed the old form of tax
statutes, brought over from the thirteenth century, ac-
cording tp which the Commons of Great Britain ** gave
and granted '' to the King " the several rates and duties
hereinafter mentioned." This form of expression neces-
sarily implied that the King was a personality apart from
the people, exercising power by virtue of his preroga-
tive and not by virtue of his being a governmental
agent, between whom and the people a relationship ex-
isted which permitted of contracts and conveyances be-
tween him and them ; and that the House of Commons
was essentially all the people of Great Britain, assembled
by their representatives, who gave and granted a part of
their property to the King.
The preamble of the Tariff Act of 1764 read:
Whereas it is expedient that new provisions and regulations
should be established for improving the revenue of this King-
dom, and for extending and securing the navigation and com-
merce between Great Britain and your Majesty's dominions
in America, which by the Peace have been so happily enlarged;
and whereas it is just and necessary that a revenue should be
Realm or Empire, 1 750-1 765 145
raised in your Majesty's dominions in America, for defraying
the expenses of defending, protecting, and securing the same:
we, your Majesty's most dutiful and loyal subjects, the Com-
mons of Great Britain, in Parliament assembled, being desirous
to make some provision, in this present session of Parliament,
towards raising the said revenue in America, have resolved to
give and grant unto your Majesty the several rates and duties
hereinafter mentioned.
As the House of Commons of Great Britain could not,
by any stretch of the imagination, be considered as the
meeting together of the people of Great Britain and the
people of the American Colonies, since the people of
the Colonies sent no representatives to that House, the
giving and granting of a tax by the Commons of Great
Britain on the property of the people of the American
Colonies was a plain case of the people of Great Britain
giving away the property of the people of America.
The language of the Tariff Act denied both limits
and conditions upon the power. The people of Great
Britain, assembled in the House of Commons by their
elected representatives, — that is, the State of Great
Britain, since the people of that State, acting through
the House of Commons, were the ultimate power of
that State, — it was claimed, had power over the property
of the people of America without specific limits of
extent and without specific conditions on the manner
of its exercise. He who has power to '* give and grant "
property has unlimited and unconditional power over it,
in a legal sense.
Undoubtedly, however, it will not do to lay too much
stress on these words. They were a mere formula. By
the constitutional settlement of 1689, the Kings of Eng-
land became governmental agents of the people and
participants in legislation with the Lords and Commons.
All that either of the three parties to legislation could
thereafter claim for itself was the right of initiating
146 The Administration of Dependencies
certain kinds of legislation. The Commons, because of the
old theory according to which they ** gave and granted '*
taxes to the King, claimed the right to initiate all tax
legislation, — or, to use the common phrase, to ** originate
money bills," and the old form of words was continued
as evidencing this right. Had Parliament passed an Act
with the simplest form of enacting clause imaginable,
imposing the duties specified in the Act on imports into
the American Colonies, the case would not have been
altered in the least.
This Act also contained the following provision :
All the forfeitures and penalties inflicted by this or any
other Act or Acts of Parliament relating to the trade and
revenues of the said British Colonies or Plantations in Amer-
ica, which shall be incurred there, shall and may be prose-
cuted, sued for, and recovered, in any court of record, or in
any Court of Admiralty, in the said Colonies or Plantations
where such offence shall be committed, or in any Court of
Vice-Admiralty which may or shall be appointed over all
America, (which Court of Admiralty or Vice- Admiralty are
hereby respectively authorized and required to proceed, hear
and determine the same), at the election of the informer or
prosecutor.
This extension of the jurisdiction of the Admiralty to
customs and revenue cases was the extension of the sys-
tem of trial without a jury which had hitherto been in
force only with respect to causes of action arising on the
sea, to cases arising on the land. The Lord High Ad-
miral, or the Lords of the Admiralty when the ofHce was
held by a Board of Commissioners, had charge of the
British interests on the seas. Upon the enactment of
the Navigation Acts for regulating the trade between
Great Britain and foreign States and between it and its
dependencies, the jurisdiction of offences against these
Acts seems to have been considered as vested in the
l&[^
Realm or Empire, 1 750-1 765 147
Courts of Admiralty. The first recognition of this juris-
diction seems to be in the Act of 1670, "to Prevent the
Planting of Tobacco in England and for Regulating the
Plantation Trade," in which it was provided that ships
violating the Navigation Acts should be forfeited " in
any of the said Plantations, in the Court of the High
Admiral of England or of any of his Vice- Admirals. "
In some of the Colonies Vice-Admiralty Courts were es-
tablished by the Crown, which had jurisdiction of offences
against the Trade and Navigation Acts by ship-captains
and mariners landing in the Colonies. Where such
courts were not established. Colonial Courts were, by
Colonial statutes, given admiralty jurisdiction. The
procedure in the Admiralty Courts was by way of libel
and seizure of the vessel, and the case was determined
without a jury. Offences against laws imposing duties
on importation of goods into the Colonies were, of
course, committed on land, since the duties did not
attach until the goods were landed, and hence such
offences were not within the jurisdiction of the Court
of Admiralty. Cases arising from the non-payment
of import duties were revenue cases, in which the
State sued in a civil or criminal action. In England,,
such suits were brought in the Court of the Exchequer ;.
in the Colonies they might be brought in any court of
general jurisdiction. They were triable by court and
jury. To confer jurisdiction of such cases on the Courts
of Vice-Admiralty in the Colonies was to treat the Colo-
nies as if they were English ships at sea, — that is, as if
they had no political status whatever, but were mere
outlying appendages of the soil of Great Britain subject
to the unlimited and unconditioned will of Parliament.
This Act mentioned **a Court of Vice- Admiralty which
may or shall be appointed over all America." It was
evidently the intention of the British Government to
place the whole admiralty jurisdiction in all the Colonies
148 The Administration of Dependencies
in one court, to be called the Court of Vice-AdmiraRy
to distinguish it from the British Court of Admiralty,
which would undoubtedly have had branches in each
Colony, and the judges of which would all have been
appointed by the Crown. On this Court it seems to have
been the intention to confer such jurisdiction as might
be deemed from time to time necessary, for the protec-
tion of the Imperial interests. Had such a Court of
Vice- Admiralty as proposed been established, it would
have been, in fact, an Imperial Court, as distinguished
from the Colonial Courts.
On March 22, 1765, Parliament passed the Stamp Act.
This Act, like the Tariflf Act of 1764, purported to
*' give and grant " the rates and taxes authorized
by it. The duties, which were imposed on every
kind of business instrument or document, newspapers,
pamphlets, calendars, almanacs, advertisements in news-
papers or pamphlets, playing-cards, and dice, were
more troublesome than those authorized by the Tariff
Act of the previous year, because they had to be paid in
piecemeal by the user and not in bulk in the first instance
by the importer, and later on by the consumer in an in-
crease of price of the commodity. The same provision
as in the Tariff Act of 1764 regarding the payment of the
net proceeds into the Imperial Treasury and using them
for the Imperial defence in the American Colonies was
inserted in the Stamp Act.
The Stamp Act contained a provision similar to that
of the Tariff Act of 1764, giving jurisdiction of customs
cases arising under it or other Tariff Acts to the Courts
of Admiralty or to the Imperial Court of Vice- Admiralty,
and also gave the right of appeal in customs cases to
the Imperial Court of Vice-Admiralty, to any party ag-
grieved by the decision of a Colonial Court having ad-
miralty jurisdiction, or by the decision of any existing
Court of Vice-Admiralty in the Colonies.
Realm or Empire, 1 750-1 765 149
The Stamp Act, based expressly, as it was, on the
claim that Parliament had unconditioned and unlimited
power in the Colonies, and affecting, as it did, every
transaction between individuals in the Colonies, squarely
raised the question whether the Colonies were integral
parts of the British State or component parts of the
British Empire. If the Colonies were integral parts of
the British State, Parliament had undoubtedly the
same unconditioned and unlimited power over them and
their inhabitants that it had over the Counties of the
Realm and their inhabitants. If, on the other hand, the
Colonies were political persons external to the British
State, in constitutional relationship with that State, the
power of Parliament over them was measured by the
power of the State of Great Britain over them, and
the conditions and limitations of that power were to be
determined by the constitutional adjudications and set-
tlements (dispositions) made by Great Britain, through
the branch of its Government having charge of its Im-
perial relations, for and with the Colonies, on principles
of just Imperial government. If the Colonies had ac-
quiesced in the claim that Parliament had power to pass
the Stamp Act, the British Empire would have ceased to
exist and in its stead there would have existed a British
Realm including all America. When the Americans op-
posed the Stamp Act, they were upholding the state-
hood of the Colonial communities, as component parts of
the political organism composed of Great Britain as the
Imperial State, and the Colonies as its dependencies,
known as the British Empire, — a political organism
which they believed to be right in principle and neces-
sary and proper for their own welfare as well as for that
of Great Britain. In a word, it may be said that when
the Americans opposed the Stamp Act, they were up-
holding the British Empire, and that the real Revolution
occurred when Great Britain, by passing the Stamp Act
1 50 The Administration of Dependencies
and thus claiming for itself unconditioned and unlimited
power over the Colonies, denied their member-state-
hood and hence the existence of the British Empire.
CHAPTER IX
THE STAMP ACT CONGRESS, 1 765
THE claim of Great Britain of the right to tax the
Colonies was based upon two grounds : First, that
Great Britain and the Colonies formed one political
organism, and that all parts of the same political organ-
ism ought to contribute to its support according to laws
established by the Central Legislature and enforced by
the Central Executive; and second, that it was unjust to
Great Britain that it should expend the money for the
common defence and welfare and receive nothing, or
only so much as the Colonies chose voluntarily to con-
tribute, for so doing. Both these propositions were met
by writers of great ability in the Colonies.
The first in the field was James Otis of Massachusetts,
who had already made himself famous by resigning the
office of Prosecutor for the Crown when the duties of the
office required him to uphold the writs of assistance at-
tempted to be issued by the courts, as general search-
warrants, in aid of the customs officers, and by appearing,
in opposition to the Crown, to dispute the constitu-
tionality of the writs.
In 1764, he published a pamphlet entitled The Rights
of the Colonies Asserted and Proved^ in which he en-
deavored to prove that the power of Parliament, whether
exercised in the Realm or in the Empire, was the
same, but that it was conditioned and limited by the
principles of natural justice — which merely meant that
the courts of the Realm and of the Colonies should
151
152 The Administration of Dependencies
determine the validity of Acts of Parliament. He
said:
The question is not upon the general power of Pazliament,
but whether it is not circumscribed within some equitable mad
reasonable bounds. It is hoped that it will not be considered
as a new doctrine that even the authoritr of the Parliament of
Great Britain is circumscribed by certain bounds, which, if
exceeded, their acts become those of mere power wi^iont
right, and consequently void.
In support of this proportion, he quoted dicta of Lord
Coke and Lord Hobart, which, however, had never been
followed by the English courts. Nothing was better
settled than that there were no constitutional conditions
or limitations upon the power of Parliament when exer-
cised within the Realm of Great Britaun, and as he did not
differentiate the Realm from the Empire, his alignment
did not help to elucidate the great question, — ^wfaich was,
how the rights and liberties of the Colonies and of their
inhabitants could be preserved consistently with the
Colonies remaining in a relationship of dependency on
Great Britain as their Imperial State, — but led, by an in-
evitable tendency, directly to independence, as most
every argument based on the proposition that communi-
ties which Nature has made dependencies of a state are
not dependencies, but integral parts of its body and
personality.
Otls's pamphlet was referred to with approval in a re-
monstrance against the Stamp Act sent by the Massa-
chusetts Legislature to the Board of Trade in 1765, and
produced much ill-feeling in England. It was one thing
to claim that the powers of Parliament were conditioned
and limited in the dependencies because the powers of
Great Britain as the Imperial State over its dependencies
were conditioned and limited and the powers of Parlia-
ment were only those of the Imperial State, and quite
The Stamp Act Congress, 1765 153
another to say that the powers of Parliament were in all
cases conditioned and limited. The first position raised
the question of the political personality of the Colonies
and their relationship as political persons to the State of
Great Britain ; the other attacked the Constitution of the
State of Great Britain.
Daniel Dulany, of Maryland, in his Considerations on
the Propriety of Imposing Taxes on the British Colonies^
published in 1765, made a decided advance toward the
solution of the problem of constitutional dependency.
Taking as fundamental the proposition that Great Britain
was the Imperial State, to which the Colonies were con-
stitutionally related as political persons, or States, he
endeavored to define the character and extent of the
power of Parliament in the Empire — or, what is the same
thing, of the power of the Imperial State, acting through
Parliament. He was the first to describe the power of the
Imperial State as a power of ''superintendence," that is,
a power limited by the necessity of its interference in
each particular case as it arose. He said:
The Colonies are dependent upon Great Britain, and the
supreme authority vested in the King, Lords and Commons
may justly be exercised to secure or preserve their depen-
dence, whenever necessary for that purpose. This authority
results from, and is implied in the idea of the relation sub-
sisting between England and her Colonies; for considering the
nature of human affections, the inferior is not to be trusted
with providing regulations, to prevent his rising to an equality
with his superior. But, though the right of the superior to
use the proper means for preserving the subordination of his
inferior is admitted, yet it does not necessarily follow that he
has a right to seize the property of his inferior when he
pleases, or to command him in everything, since, in the de-
grees of it, there may very well exist a dependence and in-
feriority, without absolute vassalage and slavery. In what the
superior may rightfully control, or compel, and in what the
\
1 54 The Administration of Dependencies
inferior ought to be at liberty to act without control or
compulsion, depends upon the nature of the dependence and
the degree of the subordination ; and these being ascertained,
the measure of obedience and submission and the extent of the
authority and superintendence will be settled.
■ ••■■••
May not then the line be distinctly and justly drawn be-
tween such acts as are necessary or proper for preserving or
securing the dependence of the Colonies, and such as are not
necessary or proper for that very important purpose ?
When credit comes to be given to those great men who
were responsible for the clause in the Constitution of the
United States relating to the government of depen-
dencies, Dulany must receive his share of honor for
having suggested the principle which underlies the phrase
'' and make all needful rules and regulations."
In 1765, Stephen Hopkins, of Rhode Island, a man of
great prominence in that Colony, who had filled its
highest offices and had been one of its delegates to the
Albany Congress of 1754, in his pamphlet The Grievances
of the American Colonies Candidly Examined^ supple-
mented the suggestion of Dulany that the power of
Parliament in the Empire was limited by the necessity
of its interference in each particular case, by suggesting
that its power was also conditional upon an expert in-
vestigation as a preliminary to all its action. He said:
Although each of the Colonies hath a Legislature within
itself, to take care of its interests and provide for its peace
and internal government, yet there are many things of a more
general nature, quite out of the reach of these particular Legis-
latures, which it is necessary should be regulated, ordered and
governed. One of this kind is, the commerce of the whole
British Empire, taken collectively, and that of each Kingdom
and Colony in it, as it makes a part of that whole. Indeed,
everything that concerns the proper interest and fit govern-
The Stamp Act Congress, 1765 155
ment of the whole Commonwealth, of keeping the peace, and
subordination of all the parts towards the whole, and one
among another, must be considered in this light. Amongst
these general concerns, perhaps money and paper credit, those
grand instruments of all commerce, will be found also to have a
place. These, with all other matters of a general nature, it is
absolutely necessary should have a general power to direct
them ; some supreme and overruling authority, with power to
make laws and form regulations for the good of all, and to
compel their execution and observation. It being necessary
some such general power should exist somewhere, every man of
the least knowledge of the British Constitution will be naturally
led to look for and find it in the Parliament of Great Britain.
That grand and august legislative body must from the nature
of their authority and the necessity of the thing, be justly
vested with this power. Hence it becomes the indispensable
duty of every good and loyal subject, cheerfully to obey and
patiently submit to all the acts, laws, orders and regulations
that may be made and passed by Parliament, for directing
and governing all these general matters.
Here it may be urged by many and, indeed, with great ap-
pearance of reason, that the equity, justice and beneficence of
the British Constitution will require that the separate King-
doms and distinct Colonies, who are to obey and be governed
by these general laws and regulations, ought to be represented,
some way or other, in Parliament, at least whilst these matters
are under consideration. Whether the Colonies will ever be
admitted to have representation in Parliament — whether it be
consistent with their distant and dependent state — and
whether, if it were admitted, it would be to their advantage —
are questions we will pass by ; and observe, that these
Colonies ought in justice, and for the very evident good of the
whole Commonwealth, to have notice of every new measure
about to be passed, by which their rights, liberties or interests
may be affected. They ought to have such notice that they
may appear and be heard by their Agents, by counsel, or written
representation, or by some other equitable and effectual way.
The Colonies are at so great a distance from England that
156 The Administration of Dependencies
the members of Parliament can generally have but little
knowledge of their business connections and interests, but
what is gained from people who have been there ; the most of
these have so slight a knowledge themselves that the informa-
tions they can give are very little to be depended on, though
they may pretend to determine with confidence on matters far
above their reach. All such informations are too uncertain to
be depended on in the transacting of business of so much
consequence, and in which the interests of two millions of free
people are so deeply concerned. There is no kind of incon-
venience or mischief can arise from the Colonies having such
notice and being heard in the manner above mentioned ; but
on the contrary, very great mischiefs have already happened
to the Colonies, and always must be expected, if they are not
heard before things of such importance are determined con-
cerning them.
Had the Colonies been fully heard, before the late Act had
been passed, no reasonable man can suppose it ever would
have passed at all in the manner it now stands. For what
good reason can possibly be given for making a law to cramp
the trade and ruin the interest of many of the Colonies, and
at the same time lessen in a prodigious manner the consump-
tion of the British manufactures in them ?
To Hopkins, therefore, must be given the credit for
the suggestion of the principle which underlies the ex-
pression "to dispose of " in the clause of the Constitution
of the United States relating to the administration of
dependencies.
The second proposition of the British Government —
that it was unjust to Great Britain, and unfair on the part
of the Colonies, that Great Britain should expend the
money for the common defence and welfare and receive
nothing for so doing or only so much as the Colonies
chose voluntarily to contribute — was answered by John
Dickinson, of Philadelphia, the leading lawyer and
statesman of Pennsylvania, in a pamphlet published in
The Stamp Act Congress, 1765 157
1765, entitled The Late Regulations Respecting the British
Colonies on the Continent of A nterica. I n this pamphlet, he
discussed the whole economic situation as between Great
Britain and the American Colonies, and showed that the
Colonies had, by the mercantile restrictions under which
they had been placed, been made to contribute to the
wealth of Great Britain many times more than Great
Britain had ever expended for their benefit in its admin-
istration of the British Empire, so that the proposition
for taking money by taxation in addition to the wealth
which was taken from them and the money which was
drained from them and transferred to Great Britain under
the existing economic conditions, was so far from being
justifiable as a repayment by the Colonies for money
expended by it for them, that it was really an adding to
the debt which Great Britain already owed to them. Of
course, this argument related merely to the particular
situation then existing, and while it made a great im-
pression, it plainly did not cover every kind of economic
situation which might exist between an Imperial State
and its dependencies, and required some general rule to
supplement it.
This general rule Dickinson proceeded to lay down, in
the resolutions adopted by the Pennsylvania Legislature,
September 21, 1765, which were drafted by him, by
making a distinction between internal and external taxes,
— internal taxes being, according to his view, within the
exclusive jurisdiction of the Colonial Governments, and
external taxes exclusively within the jurisdiction of the
British Government, acting as the Imperial Government.
The second resolution (which followed his draft verbatiM\
read:
Resolved: That in the opinion of this House, it is in-
separably essential to a free constitution of government that
all internal taxes be levied upon the people with their consent.
158 The Administration of Dependencies
Of course, if Great Britain, as the Imperial State, had
the exclusive power of external taxation, it followed, on
the principle that the greater includes the less, that it
had power to enact all other kinds of legislation relating
to the external affairs of the Colonies, and to represent
them in their external relations.
When the Stamp Act Congress met in New York on
October 7, 1765, to consider the measures to be taken in
opposition to the Stamp Act, which, though passed on
March 22, 1765, was, by its terms, not to go into effect un-
til November i, of that year, the thought of the country
may be thus summarized : Otis, in Massachusetts, denied
that Great Britain was the Imperial State, and sought to
remedy the existing evils by changing the character of
Parliament to that of a constitutionally conditioned and
limited legislature, both in Great Britain and in the Colo-
nies. This would have meant a revolution in Great
Britain. In Rhode Island, Hopkins had recognized that
Great Britain was the Imperial State and, without con-
sidering whether its powers were limited or not, had
claimed that they were conditional, so that the Colonies
were entitled to have these powers exercised by an ex-
pert tribunal acting on principles of justice, in which the
Colonies could be heard by their diplomatic agents, be-
fore any legislation affecting them became final. In
Maryland, Dulany had recognized also that Great Britain
was the Imperial State, and had advanced the proposition
that its powers were conditioned and limited so that it
could exercise only such power as was necessary and
proper for securing the dependence of the Colonies, on
principles of justice and liberty. In Pennsylvania, Dick-
inson, also recognizing that Great Britain was the Imperial
State, had taken the position that it had, as such, the
power to legislate concerning the external affairs of the
Colonies, and to represent them in the management of
these affairs.
The Stamp Act Congress, 1765 159
The resolutions adopted by the Congress on October
19, 1765, will be found, on careful examination, to be
divisible into five parts, and to contain, — first, a state-
ment of the character of the political relationship be-
tween Great Britain and the Colonies, in which Great
Britain is recognized as the Imperial State and the Colo-
nies as its dependencies; second, a statement of the
sphere of jurisdiction of Great Britain and the Colonies
respectively, under the existing Imperial Constitution;
third, a statement of the rights of the individual inhabi-
tants of the Colonies against the Imperial and Colonial
Governments under the existing Imperial Constitution ;
fourth, a statement of the violations by Great Britain of
the constitutional rights of the Colonies as political per-
sons by intrusion of the Imperial State into the sphere
of jurisdiction of the Colonies and by violation of the
constitutional rights of individuals; and fifth, a statement
of the violations by Great Britain of the constitutional
rights of the Colonies, by enacting laws which, though
within the sphere of jurisdiction of Great Britain, were
not according to the principles of justice, considering the
Colonies as political persons, or States, entitled to just and
fair treatment by the Imperial State as component parts
of its Empire.
The first part of the resolutions — that containing a
statement of the character of the political relationship
between Great Britain and the Colonies — was contained
in the first resolution, which read :
I. That his Majesty's subjects in these Colonies owe the
same allegiance to the Crown of Great Britain that is owing
from his subjects bom within the Realm, and all due subordi-
nation to that August Body, the Parliament of Great Britain.
This resolution seems to be in part taken from the de-
cision in Calvin's Case, in which it was held by all the
i6o The Administration of Dependencies
high judges of England that allegiance was to the person
of the King and was due equally from the inhabitants of
the Realm and the inhabitants of the dependencies, and
in part from the constitutional settlement made between
the Commonwealth of England and Virginia by the
Articles of Surrender of 165 1, in which it was agreed
that Virginia and all its inhabitants should " be and
remain in due obedience and subjection to the Common-
wealth of England according to the laws there estab-
lished/' which, as has before been noticed, left the whole
question of the character and extent of the obedience and
subjection to be determined according to what one or
both the parties, or some tribunal, considered to be
'*due " and proper under the circumstances.
Dickinson had made the original draft of these resolu-
tions, and the subject-matter of this resolution of the
Congress had been covered by the first two resolutions of
his draft, which read :
1. That his Majesty's subjects in these Colonies owe the
same allegiance to the Crown of Great Britain, that is due
from his subjects bom within the Realm.
2. That all Acts of Parliament, not inconsistent with the
principles of freedom, are obligatory on the colonists.
According to the theory of Dickinson's original reso-
lutions, all Acts of Parliament were to be judged by cer-
tain principles of government, assumed to be capable of
scientific determination, and, if found to be inconsistent
with such principles, were to be annulled. It left it un-
certain by what party — Great Britain, the Colonies, or a
third party or tribunal — the adjudication should be made.
The resolution in its final form, in claiming that the in-
habitants of the Colonies owed *' all due subordination to
Parliament," proceeded upon exactly the same theory,
but was more diplomatic, respectful, and proper, since it
The Stamp Act Congress, 1765 161
contained the implication that Parliament was endeavor-
ing in all cases to act on principles of freedom judicially
and expertly ascertained, and that hence its Acts were
presumptively binding.
The resolutions, both in their original and final form,
plainly and definitely claimed that the Colonies were not
integral parts of the Realm. In both the distinction was
carefully drawn between "the Colonies" and "the
Realm." The colonists were described as ** his Majesty's
subjects in these Colonies," and were distinguished from
"his Majesty's subjects bom within the Realm"; and
the position taken was that, though they all owed "the
same allegiance" to the King, " his Majesty's subjects
in these Colonies " owed obedience to such Acts of Par-
liament only as were " not inconsistent with freedom,"
or, in other words, " owed all due subordination to Parlia-
ment. "
The main reason advanced in the resolutions against
Parliamentary taxation therefore was, that the relations
of the Colonies were, in the first instance, relations be-
tween them and the State of Great Britain, and that the
powers of the Crown and Parliament over them were
such and such only as were necessary to the mainten-
ance, at the highest point of efficiency, of this political
connection between the Colonies as political organisms
and Great Britain as another political organism acting
as protector and governor.
Indeed it may be doubted whether this was not, when
the resolutions are examined, the whole basis on which
they rested, because the resolutions absolutely repudiated
any possibility of a settlement on the basis of the Colo-
nies being represented in Parliament, on the ground that
such representation was contrary to the nature of things
and hence out of the question. This repudiation was
contained in the fourth resolution, which was adopted
verbatim from Dickinson's draft, and which read:
XX
1 62 The Administration of Dependencies
IV. That the people of these Colonies are not, and from
local circumstances cannot be^ represented in the House of Com-
mons of Great Britain.
This was no more than to say that the Colonies were
not, and from local circumstances could not be, parts of
the Realm, but that they were, and from local circum-
stances must always be, so long as they were constitu-
tionally related to Great Britain, parts of the Empire of
that State.
In the second part of the resolutions — the part relating
to the respective spheres of jurisdiction of the Imperial
and the Colonial Governments — it is undoubtedly true
that the Congress made a distinction between leg^islation
for the purposes of levying and collecting taxes and
legislation for all other purposes, which, if it had stood
alone, would have laid them open to the claim that they
had admitted that other kinds of legislation except legis-
lation for taxing purposes might constitutionally be
enacted by Great Britain, as the Imperial State, without
the consent of the Colonies.
The resolutions of the Stamp Act Congress on this
subject were as follows :
III. That it is inseparably essential to the freedom of a
people, and the undoubted right of Englishmen, that no
taxes be imposed on them but with their own consent, given
personally, or by their representatives.
v. That the only representatives of the people of these
Colonies are persons chosen therein by themselves, and that
no taxes ever have been, or can be constitutionally imposed
on them, but by their respective Legislatures.
VI. That all supplies to the Crown being free gifts of the
people, it is unreasonable and inconsistent with the principles
and spirit of the British Constitution, for the people of Great
Britain to grant to his Majesty the property of the colonists.
The Stamp Act Congress, 1765 163
As, however, the Congress, under the lead of Dickin-
son, had placed their claims on the wide ground that
their subordination to Great Britain was "due " subordi-
nation, in which qualification it was necessarily implied
that they had at least the right to be heard concerning
the justice and propriety of any legislation affecting them
before it became final, these resolutions were really a
specification under the general claims contained in the
first, second, and fourth resolutions.
No distinction was made by the Congress in their reso-
lutions, based on the purposes for which the taxes were
to be levied. They placed in the same category taxation
for local administration and taxation for the defence and
welfare of the Empire of which they admitted themselves
to be subordinate parts. Great Britain had, however,
raised no constitutional question of this sort, because
though, in the Tariff Act of 1764 and the Stamp Act, it
had declared that the proceeds of the taxes thus imposed
should be kept apart as funds of the Empire, to be used
for the Imperial defence in the Colonies, it had not based
its right to tax the Colonies on this ground, but had
simply left matters so that the proceeds of the taxes
should be used for the Imperial defence in the Colonies
until Parliament should will otherwise.
That this provision was absolutely ignored by the Con-
gress was doubtless due principally to the fact that they
did not consider that they were called upon to answer
a proposition of Parliament which merely stated its in-
tentions regarding the exercise of power. Still, even if
Parliament had in these statutes declared its power to
tax to be limited, the words used were objectionable.
The proceeds were "to be from time to time disposed of
by Parliament towards defraying the necessary expenses
of defending, protecting and securing the said Colonies
and Plantations." Had it been proposed by Great
Britain to levy taxes for the defence and welfare of the
i64 The Administration of Dependencies
Etnpcre in the Colonies, attcndoa m^t hxre been called
to tlie coasideratioQs which ciiffcrentiate such taxation
from an other kinds, and the dtscnssaon might hare
turned on the proper methods of taxation for the Im-
perial defence and welfare. At that time, however, the
conception of the modem Empire, in wliidi a state is the
constitutional Emperor, and other states the constitu-
tional subjects, was perhaps too dim to enable either
party to the discussion to perceive any distinction be-
tween the defence, by the State of Great Britain of its
Empire, in that part of it called the American Colonies,
and the defence, by the Parliament of Great Britain, of
the American Colonies, as appendages or appurtenances
of the Realm of Great Britain.
The third part of the resolutions — ^that relating to the
constitutional rights of the individual inhabitants of the
Colonies against the Imperial and Colonial Governments
— was contained in the first, second, seventh, and thir-
teenth resolutions, which read :
I. That his Majesty's subjects in these Colonies owe . . •
all due subordination to that August Body, the Parliament of
Great Britain.
II. That his Majesty's liege subjects in these Colonies are
entitled to all the inherent rights and liberties of his natural-
bom subjects within the Kingdom of Great Britain.
VII. That trial by jury is the inherent and invaluable right
of every British subject in these Colonies.
XIII. That it is the right of the British subjects in these
Colonies to petition the King, or either House of Parliament.
The fourth part of the resolutions — that which set out
the grievances which were unconstitutional because in-
vasions of the sphere of jurisdiction of the Colonies and
of the constitutional rights of the individual inhabitants
of the Colonies to life, liberty, and property, as distin-
guished from those which were unconstitutional because
The Stamp Act Congress, 1765 165
oppressive and injurious in their operation — was as fol-
lows:
VIII. That the late Act of Parliament, entitled "An Act
for Granting and Applying Certain Stamp Duties, and Other
Duties, in the British Colonies and Plantations in America,"
&c., by imposing taxes on the inhabitants of these Colonies,
and the said Act, and several other Acts, by extending the
jurisdiction of the Courts of Admiralty beyond its ancient
limits, have a manifest tendency to subvert the rights and
liberties of the colonists.
The "extension of the jurisdiction of the Courts of
Admiralty beyond the ancient limits of the Admiralty,"
was the extension of the system of trial without a jury
to cases which, in their nature, arose on the land, since
duties cannot properly be said to attach to goods im-
ported until they are landed and the importation is
complete.
The fifth part of the resolutions — that relating to vio-
lations by Great Britain of the constitutional rights of the
Colonies and their inhabitants by enacting tariff laws
which, though within the sphere of jurisdiction of Great
Britain, were not based on just and scientific principles,
but were ill-considered, unjust, and oppressive to the
Colonies as political persons and to their inhabitants —
was contained in the ninth, tenth, eleventh, and twelfth
resolutions, which were:
IX. That the duties imposed by the several late Acts of
Parliament, from the peculiar circumstances of these Colonies,
will be extremely burthensome and grievous; and from the
scarcity of specie, the payment of them absolutely imprac-
ticable.
X. That as the profits of the trade of these Colonies ulti-
mately center in Great Britain, to pay for the manufactures
which they are obliged to take from thence, they eventually
1 66 The Administration of Dependencies
contribute very largely to all supplies granted there to the
Crown.
XI. That the restrictions imposed by several late Acts of
Pariiament on the trade of these Colonies will render them
unable to purchase the manufactures of Great Britain.
XII. That the increase, prosperity and happiness of these
Colonies depend on the full and free enjoyment of their rights
and liberties, and an intercourse with Great Britain mutually
affectionate and advantageous.
There was contained in these resolutions a plain sug-
gestion that these matters of tariff should be adjusted by
diplomatic agreement between Great Britain and the
Colonies, which could have been accomplished only by
the recognition of the Colonial Agents as diplomatic
representatives of the Colonies. This would have neces-
sitated that they should be received at Court and should
be allowed to negotiate terms with the King's Secretary
or his Secretarial Board appointed for the purpose, sub-
ject to the final determination of the King, made after
advising with his Secretary or Secretarial Board.
In the conclusion of the resolution the Congress recog-
nized again the allegiance of the colonists to the person
of the King and the connection of the Colonies, as po-
litical persons, with Great Britain as the Imperial State,
in the following language :
Lastly, it is the indispensable duty of these Colonies to the
best of Sovereigns, to the Mother-Country, and to themselves,
to endeavor, by a loyal and dutiful address to his Majesty and
humble applications to both Houses of Parliament, to procure
the repeal of the Act for Granting and Applying Certain Stamp
Duties, and of all clauses of any other Acts of Parliament,
whereby the jurisdiction of the Admiralty is extended as
aforesaid, and of the other late Acts for the restriction of
American commerce.
The Congress said, in its "Address to the King " :
The Stamp Act Congress, 1765 167
Our connection with the British Empire we esteem our
greatest happiness and security, and humbly conceive it may
now be so established by your royal wisdom, as to endure to
the latest period of time.
In its *' Address to the House of Commons" it said:
We esteem our connections with, and dependence on Great
Britain as one of our greatest blessings, and apprehend the
latter will appear to be sufficiently secure, when it is con-
sidered that the inhabitants in the Colonies have the most
unbounded a£fection for his Majesty's person, family, and
Government, as well as for the Mother Country, and that their
subordination to the Parliament is universally acknowledged.
In the ** Address to the King," the grievances of the
Colonies were thus stated :
Our subordinate Legislatures are in effect rendered useless
by the late Acts of Parliament imposing duties and taxes on
these Colonies and extending the jurisdiction of the Courts of
Admiralty beyond its ancient limits, — statutes by which your
Majesty's Commons in Britain undertake absolutely to dispose
of the property of their fellow-subjects in America without
their consent, and for the enforcing whereof, they are sub-
jected to the determination of a single judge in a Court unre-
strained by those wise rules of the common law, the birthright
of Englishmen, and the safeguard of their persons and liberties.
In the "Address to the House of Commons,*' the
Congress adopted the ideas of Dulany, Hopkins, and
Dickinson, in the following language :
It is submitted that it is extremely improbable that the hon-
orable House of Commons should at all times be thoroughly
acquainted with our condition, and all facts requisite to a just
and equal taxation of the Colonies.
It is also humbly submitted whether there be not a material
distinction, in reason and sound policy, between the necessary
1 68 The Administration of Dependencies
exercise of Parliamentary jurisdiction in general Acts, and the
common law, and the regulations of trade and commerce
through the whole Empire, and the exercise of that jurisdiction
by taxing the Colonies.
The proposition that the power of Parliament in the
Empire was in the nature of things different from its
power in the Realm, being only such as was necessary
to preserve, in an orderly manner, the Empire exer-
cised by the State of Great Britain over the Colonies,
was the fundamental proposition on which all the resolu-
tions of the Congress rested. Once this was admitted,
the question of the proper terms of the constitutional
relationship between Great Britain and the Colonies
resolved itself into a question of the character and ex-
tent of the power which Parliament ought to exercise
over the Colonies on principles of justice, regardless of
the character and extent of the power which it exercised
in the Realm.
CHAPTER X
PLANS OF SETTLEMENT, 1765-1767
SHORTLY after the dissolution of the Stamp Act
Congress, Sir Francis Bernard, who was then the
royal Governor of Massachusetts, in letters to
friends in England who were high in authority as mem-
bers of the Board of Trade and the Privy Council, made
suggestions concerning the course which he thought it
necessary for Great Britain, as the Imperial State, to
follow, if it was to maintain itself at the head of the Em-
pire. These letters were published in 1774, in a volume
entitled Select Letters on Trade and Government of
America. In them, he proposed that the British Govern-
ment should call together a Constitutional Convention
composed of delegates from Great Britain and the Colo-
nies, to frame a written Constitution for the parts of the
Empire situated in America and the West Indies, which
should define the relationship between Great Britain and
these Colonies (declaring it to be the Imperial State and
they its dependencies), the conditions and limitations
upon the powers of the Imperial State and the Colonies
respectively, and the rights of the individuals inhabiting
in the Colonies against the Imperial and Colonial Govern-
ments. In a letter of November 23, 1765, he said:
It is my opinion, that all the political evils in America arise
from the want of ascertaining the relations between Great
Britain and the American Colonies. Hence it is, that ideas
of that relation are formed in Britain and America so very re-
pugnant and contradictory to each other. In Great Britain,
169
1 70 The Administration of Dependencies
the American Governments are considered as corporations,
empowered to make by-laws, existing only during the pleasure
of Parliament; which hath never yet done anything to confirm
their establishments, and hath at any time a power to dissolve
them. In America, they claim (I mean in the public papers)
to be perfect States, no other wise dependent upon Great
Britain than by having the same King; which, having com-
plete Legislatures within themselves, are no way subject to that
of Great Britain ; which, in such instances as it has heretofore
exercised a legislative power over them, has usurped it. In a
difference so wide, who shall determine ? The Parliament of
Great Britain ? No, say the Americans (I mean the violent
of them) ; that would be to make them judges in their own
cause. Who then ? The King ? He is bound by Charters,
or Constitutions equal to Charters, and cannot declare against
his own grants. So, at this rate, there is no superior tribunal
to determine upon the rights and privileges of the American
Colonies.
But the general plea of the Americans against the Stamp
Act is, that they are not represented in Parliament, and there-
fore not liable to be taxed by it: to which it has been answered
in England, that they are virtually represented in Parliament
Each of these pleas tends to expose its own cause. If the
Americans rest their defence upon their not being represented,
it is in the power of Parliament, by admitting representatives
from America, to take away all pretence of their not being
bound by its Acts: on the other side, if the notion of the
Americans being virtually represented should be falsified in
fact, the plea of the Americans will remain in its full force;
whereas the right of the Parliament of Great Britain to make
laws for the American Colonies is founded upon its being the
Supreme Imperial Legislature, to which all members of the
Empire, whether represented or not, are subject in all matters
and things, and in manner and form, as shall be judged most
convenient for the whole.
But though the Parliament of Great Britain does not stand
in need of a real or virtual representation to ground its
authority over the Colonies, it may now be worth considera-
Plans of Settlement, 1 765-1 767 171
tion, whether admitting representatives from the Colonies may
not be a proper expedient for the present exigencies.
Two years ago, a proposal of this kind would not have borne
a hearing: but so much is America altered by the late financial
Acts, that a new system of policy, and of a more refined kind
than was wanted heretofore, is now become needful. The
patch-work government of America will last no longer: the
necessity of a Parliamentary establishment of the Governments
of America upon fixed constitutional principles, is brought on
with a precipitation which could not have been foreseen but
a year ago; and is become more urgent, by the very inci-
dents which make it more difficult. The circumstance of the
Americans justifying their disobedience by their not being
represented, points out a method to enforce their obedience
upon their own principles. Take them at their word ; let them
send representatives for the present time, and for the present
purposes ; thirty for the Continent, and fifteen for the Islands,
would be sufficient. In this Parliament, the Colonies being
actually represented, let the affairs of the American Govern-
ments be canvassed to the bottom; and let a general, uniform
system of American Governments be formed and established
by Act of Parliament, by which the Americans, according to
their own principles, will be bound; and let the relation of
America to Great Britain be determined and ascertained by
solemn Recognition : so that the rights of the American Gov-
ernments and their subordination to that of Great Britain, may
no longer be a subject of doubt and disputation. When this
great work is done, the American representatives may be dis-
missed, and left to attend their own Legislatures, which will
then know the bounds of their own authority; or may be con-
tinued, as shall be most advisable.
The civil policy of America is composed of temporary ex-
pedients, all derived from the Crown only; not one of the
American Governments has that sanction which none of them
ought to be without, a Parliamentary establishment. And,
until the Parliament shall establish the American Governments
172 The Administration of Dependencies
upon a constitutional bottom, and ascertain the limitations
and extensions of their Legislatures, it must be expected that
the Governments will be continually subject to disturbance,
whenever the Americans think fit to complain of innovations
upon, and infringements of, their rights; that is, whenever
anything is required of them which they don't like.
In a letter of December 14, 1765, he said:
The chief arguments of the Americans against their being
subject to Acts of Parliament which impose inland taxes (and
it will hold equally good against all other Acts of Parliament
for the regulation of their internal policy) is, that they are not
represented in Parliament. This is the Palladium of their
cause: but they have of late discovered, that this is a danger-
ous argument; for if the Parliament should allow them to send
representatives, they are concluded, and must then be bound
by Acts of Parliament, according to their own principles.
Therefore of late, when they use this argument, they add, that
such a representation is impracticable. Now it certainly is
not strictly impracticable; though it may be difficult, inex-
pedient or improper. But it seems to me, that it is both ex-
pedient and proper for the present time and purposes. The
Parliament must now interpose for regulating the policy of
America, or else all things will run into confusion. But if
they proceed to such regulations, whilst the Americans dispute
their authority, what can be expected but an enforced obe-
dience, whilst the seeds of opposition lie ready to shoot up in
proper season ? — whereas; if the Parliament first removes the
pretence for the Colonies not being subject to it, there can be
no pretence for their disobedience afterwards.
Besides, if the Parliament should undertake so important a
work as the new modelling of the Governments in America,
which seems to me to be at this time unavoidable, it appears
reasonable that the Colonies should have their deputies in the
House, both to hear and to speak upon the subject relating to
them. If they were allowed this liberty, (even though they did
not accept it, as probably some of them would not), they could
not complain of their rights being disposed of without their
Plans of Settlement, 1 765-1 767 173
being heard, as they do now. For a liberty of sending repre-
sentatives would conclude them, whether they sent them or
not. And this leads me to say that I do not propose Ameri-
can representatives as a perpetual establishment, but only as a
temporary ordinance. When the business is done, the Gov-
ernments new modelled, their Legislatures established upon
constitutional principles and a permanent bottom, and a
Recognition of the supremacy of the Parliament of Great
Britain passed by the new Legislatures as a first and conditional
Act, there will be no longer occasion for American represen-
tatives; they may return and serve in their own Assemblies,
which then may be as separate from that of Great Britain as
that of Ireland.
Bernard's scheme made no impression either in Great
Britain or the Colonies. Not only was it full of practical
difficulties, but it was completely overshadowed by the
plan of settlement advocated by William Pitt (after-
wards Lord Chatham) during the debate in the House of
Commons on January 14, 1766, on the bill for the repeal
of the Stamp Act. In his speeches on that occasion,
Pitt declared himself in favor of a great constitutional
settlement on the basis that the correctness of the prin-
ciple advanced by the Americans, that they could not be
taxed by Parliament, should be admitted by the State of
Great Britain, in consideration that the Colonies should
admit that the British Parliament had complete legisla-
tive power over them, whether represented therein or
not, in every respect save that of taxation. As Pitt then
was, and for many years had been, the acknowledged
leader of the Whig party, and the greatest statesman in
Great Britain, this proposition, to which, under penalty
of loss of his leadership, he had practically pledged the
whole Whig party of Great Britain, was of the utmost
consequence ; and all discussion was immediately focussed
on his plan of settlement and the points made by him in
supporting it.
174 The Administration of Dependencies
In his iirst speech he said :
Taxation is no part of the governing or legislative power.
The taxes are a voluntary gift or grant of the Commons alone.
In legislation, the three Estates of the Realm are alike con-
cerned, but the concurrence of the Peers and the Crown to a
tax is only necessary to close with the forms of law. The gift
and grant is of the Commons alone. In ancient days, the
Crown, the Barons and the Clergy possessed the lands. In
those days,* the Barons and the Clergy gave and granted to
the Crown. They gave and granted what was their own. At
present, since the discovery of America, and other circum-
stances permitting, the Commons are become the proprietors
of the land. The Crown has divested itself of its great estates.
The Church (God bless it !) has but a pittance. The property
of the Lords, compared with that of the Commons, is as a drop
of water in the ocean ; and this House represents those Com-
mons, the proprietors of the lands; and those proprietors
virtually represent the rest of the inhabitants. When, there-
fore, in this House, we give and grant, we give and grant what
is our own. But in an American tax, what do we do? We,
your Majesty's Commons of Great Britain, give and grant to
your Majesty, what ? Our own property ? — No, we give and
grant to your Majesty the property of your Majesty's Com-
mons in America.
The distinction between legislation and taxation is neces-
sary to liberty. The Crown, the Peers, are equally legislative
powers with the Commons. If taxation be a part of simple
legislation, the Crown, the Peers, have rights in taxation as
well as yourselves; rights which they will claim, which they
will exercise, whenever the principle can be supported by
power.
In his speech in reply to objections, he said :
I maintain that the Parliament has a right to bind, to re-
strain America. Our legislative power over the Colonies is
sovereign and supreme. When it ceases to be sovereign and
supreme, I would advise every gentleman to sell his lands and
Plans of Settlement, 1 765-1 767 175
embark for that country. When two countries are connected
together, like England and her Colonies, without being incor-
porated, one must necessarily govern; the greater must rule
the less, but so rule it as not to contradict the fundamental
principles that are common to both.
If the gentleman does not understand the difference between
internal and external taxes, I cannot help it; but there is a
plain distinction between taxes levied for the purposes of rais-
ing a revenue, and duties imposed for the regulation of trade,
for the accommodation of the subject; although in the conse-
quences, some revenue might incidentally arise from the
latter. ...
Upon the whole, I will beg leave to tell the House what is
really my opinion. It is, that the Stamp Act be repealed
absolutely, totally and immediately; that the reason for the
repeal be assigned, because it was founded on an erroneous
principle. At the same time, let the sovereign authority of
this country over the Colonies be asserted in as strong terms
as can be devised, and be made to extend to every point of
legislation whatsoever; — that we may bind their trade, confine
their manufactures, and exercise every power whatsoever, ex-
cept that of taking their money out of their pockets without
their consent.
In the House of Lords, Lord Camden (afterwards
Lord Chancellor), during the debates on the repeal of the
Stamp Act, insisted upon the distinction between taxa-
tion and other kinds of governmental power, in terms
even more emphatic than those used by Pitt.
Dr. Franklin, the Agent of the Province of Pennsyl-
vania, in his hearing before the House of Commons in
February, 1766, in opposition to the Stamp Act, follow-
ing Pitt in the idea that all external taxation (that is, by
customs duties) was essentially a regulation of trade, as-
sured the House that the Colonies only objected to in-
ternal taxation, and that any external taxation would
be entirely satisfactory to them, and persisted in this
1 76 The Administration of Dependencies
statement even when members of the House pointed out
to him that taxation by duties was, so far as they could
see, equally objectionable with any other kind of taxation.
When the Stamp Act was repealed, however, — on
March 18, 1766, — Pitt's advice was not followed. The
preamble, instead of stating that it was repealed " be-
cause it was founded on an erroneous principle," de-
clared that the repeal was due to the conclusion of
Parliament that "the continuance of the said Act would
be attended with many inconveniences and may be pro-
ductive of consequences greatly detrimental to the com-
mercial interests of these Kingdoms"; and the Peers
who dissented from the repeal, filed written reasons for
their dissent, one of which was:
Because the reason assigned in the public resolutions of the
Provincial Assemblies in the North American Colonies, for
their disobeying the Stamp Act, viz., ** That they are not
represented in the Parliament of Great Britain," extends to
all other laws of what nature soever which Parliament has
enacted, or shall enact to bind them in times to come, and
must (if admitted) set them absolutely free from any obedience
to the power of the British Parliament.
However, the repeal was regarded as a triumph for
Pitt, and as an admission that Great Britain would make
a constitutional settlement with the Colonies on the basis
proposed by him, if they would agree.
Along with the Act repealing the Stamp Act, there
was passed, on the same day, the famous Declaratory
Act of 1766, which was apparently intended to fit the
case whether it should be thought best later on to declare
Great Britain the Imperial State of the British Empire
or to declare the Empire abolished and a British Realm
substituted in its stead, governed by a Parliament in
which the inhabitants of the '* Realm " outside of Great
Britain were ** virtually " represented.
Plans of Settlement, 1 765-1 767 1 ^^
This remarkable Act, which has never yet been re-
pealed, is the foundation-stone on which the British Em-
pire rests. Its purpose was to declare the power of Great
Britain and its Parliament, consisting of King, Lords
and Commons, over all the dependencies. Though it
related, on its face, solely to the American Colonies, Mr.
Alpheus Todd, in his Parliamentary Government in the
British ColonieSy the standard work on British colonial
jurisprudence, says that it was the intention of Parlia-
ment that it should " be declaratory of the legislative
authority of Parliament over the colonies of the British
Crown" — over India and the West Indies, as well as
over the American Colonies. It was entitled " An Act
for the Better Securing the Dependency of his Majesty's
Dominions in America upon the Crown and Parliament
of Great Britain," and read as follows:
Whereas several of the Houses of Representatives in his
Majesty's Colonies and Plantations in America, have of late,
against law, claimed to themselves, or to the General As-
semblies of the same, the sole and exclusive right of imposing
duties and taxes upon his Majesty's subjects in the said
Colonies and Plantations, and have, in pursuance of such
claim, passed certain votes, resolutions, and orders, derogatory
to the legislative authority of Parliament, and inconsistent
with the dependence of the said Colonies and Plantations upon
the Crown of Great Britain: May it therefore please your most
excellent Majesty that it may be declared; and be it declared
by the King's most excellent Majesty, by and with the con-
sent of the Lords Spiritual and Temporal, and Commons, in
this present Parliament assembled, and by the authority of the
same; That the said Colonies and Plantations in America,
have been, are, and of right ought to be, subordinate unto
and dependent upon the Imperial Crown and Parliament of
Great Britain; and that the King's Majesty, by and with the
advice and consent of the Lords Spiritual and Temporal and
Commons of Great Britain, in Parliament assembled, had,
xa
1 78 The Administration of Dependencies
hath, and of right ought to have, full power and authority to
make laws and statutes of sufficient force and validity to bind
the Colonies and people of America, subjects of the Crown of
Great Britain, in all cases whatsoever.
In so far as this statute declared that the Colonies were
subordinate unto and dependent upon the Imperial
Crown and Parliament of Great Britain, it was a proper
declaration of the existence of the British Empire, and of
the power of Great Britain, as the Imperial State. In so
far as it declared that the British Parliament had full
power and authority to make laws and statutes of suffi-
cient force and validity to bind the Colonies and their
inhabitants in all cases whatsoever, it was a denial of the
existence of the British Empire and a declaration that
all the region over which the Crown and Parliament had
power constituted a single British Realm.
The claim was of ** legislative " authority. The theory
of the " legislative " authority in Great Britain was, that
it was the same power which all the people of Great
Britain, if assembled together as a legislature, would
have. Such a power is unlimited and unconditioned in
any constitutional sense, being without specific limits or
conditions, but it is self-limited and self-conditioned by
the interests of the units against the mass. Acts of
Parliament relating to the American Colonies, which were
limited and conditioned only by the ratification of the
people of Great Britain, acting according to their will and
non-expertly, were, of course, to all intents and purposes,
so far as the Colonies were concerned, unlimited and un-
conditioned, because the people of Great Britain were as
external to the Colonies as was the Parliament, and there
was no possibility of their power being self-limited and
self-conditioned by the self-interest of the individual
units, since no individual in Great Britain would have
an interest, distinct from the mass, in seeing that the
Plans of Settlement, 1 765-1 767 179
dependencies were fairly treated. In other words, a
claim of the British Parliament to exercise *' legislative "
authority over the Colonies was a claim to exercise un-
limited and unconditional power, while a claim of legis-
lative authority over Great Britain was a claim to exercise
power without any specific limits and without any
specific conditions laid down as a prerequisite, but subject
to be limited because it was exercised with the distinct
understanding that the exercise of it was valid only so
long as it should continue to be ratified by the acquies-
cence of the people of Great Britain.
The next Act of Parliament relating to America
showed that the Declaratory Act of 1766 was intended
to be put in full force. In 1767, Parliament suspended the
sitting of the General Assembly of New York because it
had failed to supply money sufficient to pay for the
quartering of British troops in the Province under the
provisions of the annual Acts, which permitted the quar-
tering of troops in inns and public houses, and, in case
such accommodations were insufficient, in uninhabited
houses and barns, allowed the seizing of wagons, and re-
quired the soldiers so quartered to be furnished with
food, drink, and lodging at the expense of the Colony.
Another Act, passed also in 1767, imposed taxes on
glass, lead, painters' colors, paper, and tea imported into
the Colonies. The House of Commons, in this, as in the
Tariff Act of 1764 and the Stamp Act, *' gave and
granted " to the King the duties provided in the Act.
In the preamble, it was declared that the purpose of the
Act was to raise a revenue
for making a more certain and adequate provision for de-
fraying the charge of the administration of justice, and the
support of the civil government, in such Provinces where it
shall be found necessary, and towards further defraying the
expenses of defending, protecting and securing the said
dominions.
i8o The Administration of Dependencies
In the body of the Act, it was provided that the net
proceeds of the tax should be applied, in the first place,
to meeting the expenses of the local administration in
those Colonies in which the Assemblies did not make
sufficient provision for this purpose, and that the residue
should be kept separate in the British Treasury to be
used for the Imperial defence in the Colonies.
In 1767, also, an Act was passed establishing a Board
of Commissioners of Customs for America, who were to
act as inquisitors and prosecutors in the enforcement of
the Tariflf Acts.
Pitt, in his speech on the repeal of the Stamp Act, had
made himself, in a sense, the Commissioner of Great
Britain to negotiate with the Colonies. He had made a
definite proposition to them for a constitutional settle-
ment, and his great political influence made it likely that
if the Colonies accepted it, it could be carried through
Parliament. Franklin had gone far towards committing
the Americans to an acceptance of it.
Upon the passage of these Acts, the Americans
naturally turned to Dickinson, the author of the reso-
lutions of the Stamp Act Congress, as their Commis-
sioner to answer the proposition of Pitt (who had mean-
while been made Earl of Chatham), according to which
Parliament, in passing the Acts, was strictly acting.
This answer Dickinson made in his Letters front a Penn-
sylvania Farmer^ otherwise called The Farmer* s Letters^
published in 1 767, which were reprinted in England and
France and went through several editions in those coun-
tries and the American Colonies.
His answer was, in effect, first, a protest against a
settlement being made on any such basis, since the
Americans claimed that provisions ought to be made, in
any constitutional settlement, whereby the power over
the dependencies should be exercised expertly and only
according to the necessity in each case ; and, secondly, a
Plans of Settlement, 1 765-1 767 181
counter-proposition to the effect that, if a settlement
could be made only on the basis that Parliament was to
have a certain sphere of jurisdiction and the Colonies
another, the Colonies could consent to Parliament having
power over them only for the regulation of their external
commerce.
While Dickinson did not, in The Fartner's Letters^
insist upon a constitutional settlement on the basis that
the administration of the Colonies in Great Britain should
be in the hands of an expert tribunal, his argument in-
evitably made for a settlement on that basis. He said :
** Asthe happiness of these Provinces indubitably consists in their
connection with Great Britain^ any separation between them is less
likely to be occasioned by civil discords^ if every disgusting measure
is opposed singly, and while it is new : for in this manner of
proceeding y every such mectsure is most likely to be rectified.
On the other hand, oppressions and dissatisfactions being per-
mitted to accumulate, if ever the governed throw oflF the load,
they will do more. A people does not refonn with modera-
tion. The rights of the subject therefore cannot be too often
considered, explained or asserted: and whoever attempts to
do this, shows himself, whatever may be the rash and peevish
reflections of pretended wisdom and pretended duty, a friend
to those who injudiciously exercise their power, as well as to
them, over whom it is so exercised.
Had all the points of prerogative claimed by Charles /. been
separately contested and settled in preceding reigns, his fate would
in all probability have been very different ; and the people would
have been content with that liberty which is compatible with regal
authority. But he thought it would be as dangerous for him
to give up the powers which at any time had been by usurpa-
tion exercised by the Crown, as those that were legally vested
in it. This produced an equal excess on the part of the people.
For when their passions were excited by multiplied grievances,
they thought it would be as dangerous for them to allow the
powers that were legally vested in the Crown, as those which
1 82 The Administration of Dependencies
at any time had been bj osnrpation exercised bj it. Acts^
that might hy tkemsiivts have been mpom wuuvf comsidtnUums ex-
cused or exienmaiedy derived a contagums maJignaney and odimm
from other acts^ with which they were comucted. They were mot
regarded according to the dw^le force of each^ hut as fiarts of a
system of oppressiom^
If the Parliament succeeds in this attempt, other statutes
will impose other duties. Instead of taxing ourselves, as we
have been accustomed to do, from the first settlement of these
Provinces, all our usual taxes will be converted into Parliament-
ary taxes on our importations; amdthus the Parliament mil levy
upon us such sums of money as they choose to tahe^ without any
other limitation than their pleasure.
We know how much labor and care have been bestowed by
these Colonies, in laying taxes in such a manner, that they
should be most easy to the people, by being laid on the proper
articles; most equal, by being proportioned to every man's
circumstances; and cheapest, by the method directed for col-
lecting them.
But Parliamentary taxes will he laid on us without any consider-
ation^ whether there is any easier mode. The only point regarded
will be^ the certainty of levying the taxes y and not the convenience of
the people on whom they are to be levied j and therefore all statutes
on this head will be such as will be most likely, according to
the favorite phrase, " to execute themselves."
Taxes in every free State have been, and ought to be, as ex-
actly proportioned as is possible to the abilities of those who
are to pay them. They cannot otherwise be just.
/ mention these particular caseSy as striking instances how
far the late Act is a deviation from that principle of justice y
which has so constantly distinguished our own laws on this con-
tinent y and ought to be regarded in all laws.
Of course, if it was necessary that " every disgusting
measure should be opposed singly and while it was new,"
if •* all points of prerogative" claimed by Great Britain
Plans of Settlement, 1765- 1767 183
were to be "separately contested and settled," and if the
acts of the British Government were "to be regarded
according to the simple force of each," Parliamentary
government of the Colonies was out of the question.
The business of Parliament could not stop in order to
hear the representatives of the Colonies on each proposed
measure or on each measure enacted by Parliament. If
it legislated, it must legislate in the usual manner.
If it was necessary that the action of the British Gov-
ernment should take place only "after consideration " of
what was " the easier mode " for the colonists and what
would suit their " convenience," Parliamentary govern-
ment was out of the question, because a great body like
Parliament was concerned so fully with its own interests
that it could not " judiciously exercise its power" over
communities external to Great Britain, and its Acts re-
lating to such communities were likely to contain " devi-
ations from justice."
This reasoning necessarily led to the conclusion that
the power of the Imperial State over the Colonies could
never properly and constitutionally be exercised accord-
ing to mere will, but must always be exercised according
to principles ascertained by experts after hearing the
parties interested.
Having thus protested against all non-expert exercise
of the power of Great Britain, as contrary to the true
principles of Imperial government, he proceeded to specify
the limits within which, in his opinion, America could,
for the sake of a present settlement of the matters in
dispute, accept the non-expert exercise of the power,
saying:
The Parliament unquestionably possesses a legal authority
to regulate the trade of Great Britain, and all her colonies.
Such an authority is essential to the relation between a mother
country and her colonies, and necessary for the common
1 84 The Administration of Dependencies
good of all. He, who considers these Provinces as States dis-
tinct from the British Empire, has very slender notions of
justice, or of their interests. We are but parts of a whole;
and therefore there must exist a power somewhere to preside,
and preserve the connection in due order. This power is
lodged in the Parliament; and we are as much dependent on
Great Britain, as a perfectly free people can be on another.
I have looked over every statute relating to these Colonies,
from their first settlement to this time; and I find every one
of them founded on this principle, till the Stamp Act admin-
istration : All before, are calculated to regulate trade, and
preserve or promote a mutually beneficial intercourse between
the several constituent parts of the Empire; and though many
of them imposed duties on trade, yet those duties were alwajrs
imposed with design to restrain the commerce of one part, that
was injurious to another, and thus to promote the general wel-
fare. The raising a revenue thereby was never intended.
These Colonies require many things for their use, which the
laws of Great Britain prohibit them from getting anywhere but
from her. Such are paper and glass.
That we may legally be bound to pay any general duties on
these commodities, relative to the regulation of trade, is
granted ; but we being obliged by her laws to take them from
Great Britain, any special duties imposed on their exportation
to us only, with intention to raise a revenue from us only, are
as much taxes upon us, as those imposed by the Stamp Act.
What is the difiference in substance and right, whether the
same sum is raised upon us by the rates mentioned in the
Stamp Act, on the use of paper, or by these duties, on the im-
portation of it ? It is only the edition of a former book, shift-
ing a sentence from the end to the beginning.
Suppose the duties were made payable in Great Britain.
It signifies nothing to us, whether they are to be paid here
or there. Had the Stamp Act directed that all the paper
should be landed at Florida, and the duties paid there, before
it was brought to the British Colonies, would the Act have
raised less money upon us, or have been less destructive of
Plans of Settlement, 1 765-1 767 185
our rights ? By no means: for as we were under a necessity
of using the paper, we should have been under the necessity
of paying the duties. Thus, in the present case, a like neces-
sity will subject us, if this Act continues in force, to the pay-
ment of the duties now imposed.
Dickinson's argument on this phase of the question
necessarily proceeded, as did Pitt's, upon the theory that
there was an essential difference between taxation and
all other kinds of legislation. He endeavored to prove
this exactly as Pitt had done, by showing that such a
distinction had always existed in the English political
practice and science -^ taxes being regarded as grants of
money from the people to the Crown, and legislation as
grants of privileges by the Crown to the people.
The difficulty with this argument was, that it took no
account of the changed conditions of government. In the
days when the King was a personality apart from the
people, who made laws for them without their consent,
the only control the people had over him was to decide
upon the amount of public money which he should handle,
and the amount of the recompense he should have for
his services. But in 1767 the King was fighting for his
existence as the superior and expert governmental agency
of the Realm and Empire, vainly trying, by fair means
or foul, to prevent the people, through Parliament sitting
as the Constitutional Convention, from taking away his
proper powers in the performance of that agency. The
Commons no longer needed to give and grant to him
money, because they gave and granted to him his office,
and the salary was a mere incident to the office. From
the instant that the Act of Settlement was an accom-
plished fact, taxation was only one form of legislation,
all legislation being thenceforth the act of the House of
Commons, checked by the King and the House of Lords.
The position taken by Pitt and followed by Dickinson,
1 86 The Administration of Dependencies
that the settlement should proceed on the basis that the
Colonies should not be taxed by Great Britain, was
proper enough as the basis of a truce or a modus vivendu
but not as the basis of a constitutional settlement. The
State of Great Britain, as the Imperial State, or Sover-
eign, of the American Colonies, claimed the right to
make laws, without their consent, given in any manner
whatever, and even without their deliberation and advice,
as a personality apart from them, self-appointed for that
purpose. So long as it did that, it was necessary, as a
matter of political warfare, to make the distinction be-
tween taxation and other kinds of legislation, and to in-
sist, as the people of England did under like circumstances
with their Kings, that as long as the Kings made such a
claim to legislate without their consent and without
their deliberation and advice, they would, without the
King's consent, and without his deliberation or advice,
fix the amount of money which he should have and
should handle.
The distinction between taxation and other forms of
legislation was a distinction necessitated, therefore, not
by a state of internal peace in the Empire, but by a state
of distrust of the Imperial State on the part of the de-
pendencies. It furnished a ground for the suspension of
hostilities, but provided no assurance against hostilities
breaking out at any time on questions other than those
of taxation. It left the British Empire in a condition of
inefficiency as a political organism, and compelled Great
Britain either to exploit its dependencies, or to pay the
whole expense of the Empire.
Dickinson vehemently repudiated, in The Farmer's
Letters, any intention of saying anything which might
tend to break off the constitutional connection between
Great Britain and the Colonies, and insisted that his only
purpose was to bring about a constitutional settlement
satisfactory to both parties. In the third Letter^ he said:
Plans of Settlement, 1 765-1 767 187
The prosperity of these Provinces is founded in their de-
pendence on Great Britain; and when she returns to her "old
good humour, and her old good nature,'* as Lord Clarendon
expresses it, I hope they will always think it their duty and
interest, as it most certainly will be, to promote her welfare
by all the means in their power.
In a note to the last Letter y he said :
If any person shall imagine that he discovers, in these Let-
ters, the least dislike of the dependence of these Colonies on
Great Britain, I beg that such person will not form any judg-
ment on particular expressions, but will consider the tenor of
all the Letters taken together. In that case, I flatter myself,
that every unprejudiced reader will be convinced that the
true interests of Great Britain are as dear to me, as they ought
to be to every good subject. If I am an enthusiast in any
thing, it is in my zeal for the perpetual dependence of these
Colonies on their Mother Country, — a dependence founded on
mutual benefits, the continuance of which can be secured only
by mutual affections.
Comparing Dickinson's counter-proposition with Lord
Chatham's proposition, it will be seen that they diflfer ma-
terially. Lord Chatham's proposition may thus be stated :
Great Britain will agree that it has no right to tax the
American Colonies; this admission is not, however, to affect its
right, by Act of its Parliament, to impose external or customs
duties, which right Great Britain claims and reserves to itself;
provided the American Colonies will agree that, except as
above agreed and admitted. Great Britain has the right,
by Act of its Parliament, to legislate in all cases whatsoever
for the Colonies, and to cause its legislation to be executed.
Dickinson's counter-proposition may thus be stated :
The American Colonies, protesting that the question is not
of the right of Great Britain to tax them, but of the character
1 88 The Administration of Dependencies
and extent of all its powers over them and the principles on
which those powers rest, but being willing to enter into a con-
stitutional settlement which will relieve the present situation,
will agree that Great Britain has the right, by Act of its Par-
liament, to regulate the trade and commerce of the Colonies
to the extent and in the manner practiced prior to the Tariff
Act of 1764, provided Great Britain will agree that it has no
right to tax the Colonies, and that this agreement shall be
construed as an admission that it has no right to levy cus-
toms duties except as an incident to the regulation of com-
merce and to the extent necessary for that purpose.
Dickinson did not fail to point out the violations com-
mitted by Parliament, otherwise than by way of taxation,
of the constitutional rights of the inhabitants of the
Colonies, and of the Colonies as States. The provision
of the Tariff Act of 1767, by which the proceeds of the
taxes were to be used ** for making a more certain and
adequate provision for defraying the charge of the ad-
ministration of justice and the support of civil govern-
ment in such Provinces where it shall be found necessary,*'
he particularly criticised as an attack upon the statehood
of the Colonies, demanding, in their behalf, a Local Ad-
ministration and a Local Judiciary responsible to the
people of the Colonies. Particularly, he demanded a
Colonial Judiciary which, though appointed by the
Crown, should be secured in office during good behavior,
and whose salaries should be such as the Colonial Legis-
latures should determine.
Franklin had an edition of The Farmer's Letters pub-
lished in England, and they were translated and printed
in France and went through several editions in both
countries. Richard Henry Lee had an edition printed
in Virginia, and another was published in Boston.
Dickinson's counter-proposition met with almost uni-
versal approval throughout the Colonies. Jefferson,
speaking of the situation in Virginia in 1768, in his
Plans of Settlement, 1 765-1 767 189
Autobiography^ while declaring that, in his view, the
relation between Great Britain and the American Colo-
nies was " exactly the same as that of England and Scot-
land after the accession of James and until the Union,
and the same as her present relations with Hanover,*'
frankly adds:
In this doctrine, however, I had never been able to get any
one to agree with me but Mr. Wythe. He concurred in it from
the first dawn of the question, ' * What was the political rela-
tion between us and England ? " Our other patriots, Ran-
dolph, the Lees, Nicholas, Pendleton, stopped at the half-way
house of John Dickinson, who admitted that England had a
right to regulate our commerce, and to levy duties on it for
the purposes of regulation, but not of raising revenue.
In Massachusetts, the approval took an organized form.
At a town-meeting held in Boston on March 14, 1768,
It was voted " that the thanks of the Town be given to
the ingenious author of a course of letters published at
Philadelphia and in this place, signed * A Farmer,* wherein
the rights of American subjects are clearly stated and
fully vindicated," and a committee, of which John Han-
cock and Samuel Adams were members, was appointed
" to prepare and publish a letter of thanks accordingly."
In the letter which was accordingly prepared and which
was adopted at a town-meeting held ten days later, the
Town of Boston declared that to Dickinson ** America is
obliged for a most seasonable, sensible, loyal and vigorous
vindication of her invaded rights and liberties," and
added :
Nor is this Western world alone indebted to your wisdom,
fortitude and patriotism ; Great Britain also may be confirmed
by you that to be truly great and successful, she must be just;
that to oppress America is to violate her own honor, defeat
her brightest prospects and contract her spreading Empire.
190 The Administration of Dependencies
Thus in all sections of America, Diddnson was recog-
nized as the Commissioner for the Cokmies to treat with
Great Britain, and his counter-proposition for a consti-
tutional settlement approved by what was virtually a
plebiscite. At the time The Farmer s Letters were pub-
lished, however. Lord Chatham was out of power, and
the disposition of the Ministr>' was to adopt temporizing
measures, in the hope of avoiding a constitutionsd settle-
ment with the Colonies.
CHAPTER XI
IMPERIAL UNITY, 1 768
AS a result of the consideration given to the question
of the relationship between Great Britain and the
Colonies prior to 1768, two distinct views of the
unity of the British Empire were beginning to be held,
according to one of which the Empire was a permanent
Union of States, in which the Imperial State governed the
others according to its mere will, except in so far as it had
agreed not to govern them at all ; and according to the
other, a temporary Union of States which might be con-
verted, at the option of Great Britain, into a Unitary
State — that is, an aggregation of lands and persons under
the British Government. Of the first view Governor Ber-
nard was the principal exponent. In a letter of January
28, 1768, published in his Select Letters on the Trade and
Government of America^ he used the expression "Imperial
State" to describe Great Britain and the expression
"dependent States" to describe the Colonies, and used
language which showed that he regarded the relationship
as a permanent one. In this letter he said :
When the dispute has been carried so far as to involve in it
matters of the highest importance to the Imperial Sovereignty ;
when it has produced questions which the Sovereign State
cannot give up, and the dependent States insist upon as the
terms of a reconciliation ; when the Imperial State has so far
given way as to let the dependent States flatter themselves
that their pretensions are admissible ; whatever terms of
reconciliation time, accident or design may produce, if they
19X
192 The Administration of Dependencies
are deficient in settling the true relaticm of Great Britain to
her Colonies and ascertaining the bounds of the SoTereigntT
of the one, and the dependence of the other, conciliation will
be no more than a suspension of animositj; the seeds of which
will be left in the ground ready to start up again whenerer
there shall be a new occasion for the Americans to assert their
independence of the authority of Parliament; that is, when-
ever the Parliament shall make ordinances which the Ameri-
cans shall think not for their interest to obey.
Ex-Govemor Pownall, in the fourth edition of his book
The Administration of the Colonies^ in 1768, took the
position that, whether or not the Colonies had ever been
related to Great Britain as States, nevertheless, when Par-
liament elected to tax them, they were thereby incorpor-
ated into the British Realm and their inhabitants merged
with the inhabitants of Great Britain. He criticised the
language of the Declaratory Act of 1766, in which the
British Government had taken the position that the Col-
onies and their inhabitants were dependent upon the Im-
perial Crown of Great Britain, because, as he claimed, it
contained an admission that the Colonies were outside the
Realm. He reasoned that in the expression "the Im-
perial Crown of Great Britain," it was necessarily implied
that the State of Great Britain was the Sovereign of the
dependencies and their inhabitants, and that, since the
State of Great Britain, as Sovereign, necessarily acted
through its whole Government, consisting of King,
Lords, and Commons, that whole Government consti-
tuted the Imperial Crown. If so, he argued that, since
the powers of the whole British Government must be
determined by the powers of the British State, as King
or Sovereign of the Colonies and their inhabitants, and
since the powers of the British State, as Sovereign, over
the Colonies, must be conditioned and limited in the
same way that the powers of any natural person, as
Sovereign, would be conditioned and limited, this theory
Imperial Unity, 1768 193
inevitably led to a conditioned and limited power of
Parliament over the Colonies. He said :
At this day the constitution and rights of the Colonies, in
the actual exercise of them, are unsettled; the relation in which
they stand connected with the Realm and with the King, is dis-
puted ; and Parliament, as well as Ministers, are balancing in
opinion what is the true, legal, and constitutional mode of
administration by which those Colonies are to be governed.
Whether the Colonies be demesnes of the Crown, without the
Realm, or parts and parcels of the Realm, whether these
foreign dominions of the King be as yet annexed to the Realm
of England, whether the colonists be subjects of the King in
his foreign dominions, or whether they be subjects of, and owe
allegiance to the Realm, has been at various times, and is at
this day called into dispute. This question is now no longer
of curiosity and theory; it is brought actually into issue. It
is now by deeds and overt acts discussed, and must be decided.
From the uncontroverted and universal idea of the sub-
ordination of the Colonies to the Government of the Mother
Country, this power, by which the Parliament makes laws
that shall be binding on the Colonies, has been constantly
exerted by the Government of England, (afterwards Great
Britain) and submitted to by the Colonies. The fundamental
maxim of the laws of those countries, is, that first, the common
law of England, together with such statutes (the ecclesiastical
laws and canons excepted) as were enacted before the Colonies
had Legislatures of their own; secondly, the laws made by
their own Legislatures; together with, thirdly, such Acts of
Parliament as by a special clause are extended to America,
since that time, — are the laws of each Province or Colony.
The jurisdiction and power of every court established in that
country, the duty of every civil officer, the process of every
transaction in law and business there, is regulated on this
principle. Nay further, every Act of Parliament passed since
the establishment of the Colonies, which respects the general
police of the Realm, or the rights and liberties of the subjects
«3
194 The Administration of Dependencies
of the Realm, although not extended by any special clause to
America by Parliament, although without the intervention, or
express consent of their own respective Legislatures or Repre-
sentatives, has been considered, and I may venture to say,
adopted as part of the law and constitution of those countries ;
but by what principle of our Constitution, by what maxim of
law, this last practice has been established, is not so easy to
ascertain, any more than it will be easy to fix any rule, when
the Colonies shall adopt, or when they may refuse those kinds
of laws of the Mother Country. This arises, as I have said,
from some vague indecisive idea that the Colonies are of, or
some parts of the Realm ; but how or what parts, or whether
any parts at all, has never yet been thoroughly examined.
We have seen what was, in reality, the dependence and
subordination of the colonists to the King, while they were
supposed to be subject to him in a Seignoral capacity. We
have seen what must have been the same subordination, while
they were supposed to be subject to the two Houses of Lords
and Commons, as Sovereign in the same capacity.
Let us take up the next idea, that while they are not of the
body of the Realm, are no parts or parcel of the same, but
bodies corporate and politic, distinct from and without the
Realm, "they are nevertheless, and of right ought to be sub-
ordinate unto, and dependent upon the Imperial Crown of Great
Britain, (/. e, the Realm,) and that the King's Majesty, by and
with the advice and consent of the Lords Spiritual and Tem-
poral and Commons of Great Britain assembled in Parliament,
had, hath, and of right ought to have full power and authority
to make laws and statutes of sufficient force and validity to
bind the Colonies and people of America, subjects of the
Crown of Great Britain, in all cases whatsoever." In this
idea we have a very different state of the relation, namely, the
Imperial Crown of Great Britain, the King, Lords and Com-
mons, collectively taken, is stated as Sovereign on the one
hand, and the colonists as subjects on the other.
There is no doubt, but that in the nature, reason, justice
and necessity of the thing, there must be somewhere, within
the body politic of every Government, an absolute power.
Imperial Unity, 1768 195
The political freedom of Great Britain consists in this power's
being lodged nowhere but in King, Lords and Commons in
Parliament assembled. This power is absolute throughout
the Realm, and yet the rights and liberties of the subject are
preserved, as the Communitas Populi is the body, of which this
Imperium is the soul, reasoning, willing, and acting, in absolute
and entire union with it, so as to form one political person.
There can be no doubt but that this power is absolute
throughout the dominions of the Realm; yet in the exercise
of this power, by the Imperial Crown of Great Britain, — that
is, by the King's Majesty, with the Lords and Commons in
Parliament assembled, — towards the Colonies, if they are not
of this body of the Realm, but are still to be considered as
distinct bodies, foreign or extraneous parts, without the Realm
and the jurisdiction of this Kingdom, there is surely some at-
tention due to the nature of this absoluteness in this case.
If the people of the Colonies are no part of the people, or\
of the body, of the Realm of Great Britain, and if they are to
be stated in the argument, as subject to the King, not as the
head of that compound political person, of which they are in
part the body, sedut caput alterius populi^ — as wearing the Im-
perial Crown of Great Britain, as the head to which the Realm
of Great Britain is the body, and of which body the Parliament
is the soul, but of which the Colonies are no part, — then this
Imperial Supreme Magistrate, the collective power of King,
Lords and Commons, may be seated as Sovereign on the one
hand, while the people of the Colonies stand as subjects on /
the other.
Taking the relation of the Colonies to the Mother Country
in this view, when the argument is stated in this manner, we
surely may say with exactness and truth, that if the colonists,
by birthright, by nature or by establishment, ever were en-
titled to all the rights, privileges, liberties and franchises of
an Englishman, the absolute power of this Sovereign must
have some bounds; must from its own nature, from the very
nature of these rights of its subjects, be limited in its exten-
sion and exercise. Upon this state of the case, questions will
necessarily arise, which I will not take upon me to decide.
196 The Administration of Dependencies
whether this Sovereign can disfranchise subjects, so circum-
stanced, of their rights, because they are settled beyond the
territorial limits of the Realm; whether these subjects, thus
circumstanced, can, because they are supposed not to be of the
Realm, lose that interest in the Legislative Power, which they
would have had if they were of, or within the Realm ; whether
this natural right which they have to personal liberty and to
political freedom is inherent in them "to all intents and pur-
poses, as though they had been bom within the Realm," or
whether "it is to be understood, with very many and very
great restrictions ' ' ; whether these people, from the nature of
these inherent rights and liberties, are entitled to have, and
have a right to require a constitution of the same political
liberty as that which they left, or whether "the whole of their
constitutions are liable to be new modelled and reformed ' ' at
the will of this Sovereign; whether the legislative part of their
constitution is, they being distinct, although subordinate,
dominions, and no part of the Mother Country, an inherent
right of a body of Englishmen, so circumstanced, or whether
it can be suspended, or taken away at the will of this Sovereign.
In stating these doubts, I do not here add the question, which
in time past has been raised, on the right which this Sovereign
has, or has not, to impose taxes on these subjects, circum-
stanced as above stated, without the intervention of their own
free will and grant; because, let these other questions be de-
cided howsoever they may, this stands upon quite other
grounds, and depends upon quite other principles.
/ So long as the Government of the Mother Country claims a
right to act under this idea of the relation between the Mother
Country and the Colonies, so long as the Colonies shall be
esteemed in this relation, as " no part of the Mother Country,"
so long will the colonists think they have a right to raise these
questions, and that it is their duty to struggle in the cause
which is to decide them ; and so long will there be faction and
\ opposition, instead of government and obedience.
This amounted to saying that Parliament, in the De-
claratory Act of 1766, had contradicted itself, in that.
Imperial Unity, 1768 197
after having declared that the Colonies and their inhabi-
tants were subordinate to and dependent upon the Im-
perial Crown and Parliament of Great Britain, — which
necessarily implied that the Colonies were dependent
states, that the relationship between them and Great
Britain was subject to constitutional conditions and limi-
tations, and that the powers of Parliament over the Col-
onies and their inhabitants were measured by those which
the Imperial State had, by the Constitution of the Em-
pire, to legislate and to execute legislation, — it had im-
mediately proceeded to declare that Parliament had
unconditioned and unlimited power over the Colonies and
their inhabitants. v
He claimed that Parliament ought not to have declareo"
that Great Britain was the Imperial State and the Colo-
nies its dependencies, and that, thjcrefore, it ought to
withdraw that declaration and substitute for it another to
the eflect that Great Britain was an integral part of the
Realm, and the Colonies another integral part, and that
the Colonies were entitled to be represented in Parlia-
ment.
Since no Colony had ever sent representatives to Par-
liament, it was necessary, in order to prevent such a dec-
laration as Pownall proposed from amounting to a charge
of ignorance or wilful oppression of the Colonies by Great
Britain in the past, and of ignorant or weak submission
by the Colonies to wrong-doing by Great Britain, to give
some reason why the Colonies had not been thereto-
fore represented in Parliament. The reason advanced by
him was, that the right of the Colonies to representation
first began when Parliament considered them as objects of
taxation. He said :
The Colonies, from their remote distance and local circum-
stances, could not have been incorporated into any county,
city or borough, — at least, so it is said : and yet, at the same
198 The Administration of Dependencies
time they are supposed to be, and are considered as within the
Diocese of London. The colonists were considered as hav-
ing gone forth from, and having quitted the Realm; as having
settled on land without the Realm.
The Colonies thus remote and separate from the Realm,
were formed and incorporated into distinct communities ; were
erected into Provinces; had the jura regalia granted to
them; were, in consequence thereof, to all intents and pur-
poses Counties Palatine, in like and as ample manner as the
County Palatine of Durham was, some matters of form ex-
cepted. They were dominions of the King of England;
although, according to the language of those times, " not yet
annexed to the Crown." They were under the jurisdiction of
the King upon the principles of feudal Sovereignty, although
considered as **out of the jurisdiction of the Kingdom." The
Parliament itself doubting, at that time, whether it had juris-
diction to meddle with those matters, did not think proper to
pass bills concerning America. The Colonies had, therefore,
Legislatures peculiar to their own separate communities, sub-
ordinate to England, in that they could make no laws contrar}'
to the laws of the Mother Country, but, in all other matters
and things, free, uncontrolled and complete Legislatures, in
conjunction with the King or his Deputy, as part thereof.
/ When the King, at the Restoration, participated in the
I Sovereignty over these his foreign dominions, with the Lords
1 and Commons, the Colonies became, in fact, the dominions of
'.the Realm, — became subjects of the Kingdom. They came,
in fact, and by an actual constitutional exercise of power,
under the authority and jurisdiction of Parliament. They be- 41
came connected and annexed to the State. By coming as parts \
of the British Realm, not as a separate Kingdom, (which is the
case of Ireland), under subjection to the Parliament, they
became participants of the rights and liberties on which the
power of Parliament is founded. By the very act of extend-'
ing the power of Parliament over the Colonies, the rights and
liberties of the Realm must be also extended to them, for,
from the nature of the British Constitution, from the constitu-
tion of Parliament itself, they, as parts, can be subject by no
Imperial Unity, 1768 199
other mode, than by that in which Parliament can exercise its
Sovereignty; for the nature of the power and the nature of
the subjection must be reciprocal. They became therefore'
annexed, although perhaps not yet united parts of the Realm.
But to express all that I mean, in a proposition that can neither
be misunderstood nor misinterpreted, they from that moment,
(whatever was their prior situation), stood related to the
Crown and to the Realm literally and precisely in the same
predicament in which the County Palatine of Durham stood,
— that is, subject to be bound by Acts of Parliament in all
cases whatsoever, and even ' ' liable to all rates, payments
and subsidies granted by Parliament," although the inhabi-
tants of these countries, " have not hitherto had the liberty and
privilege of sending knights and burgesses to Parliament of
their own election." And, in the same manner, also, be-
cause, in that the inhabitants of the County Palatine of Dur-
ham were liable to all rates, payments and subsidies granted
by Parliament, and were therefore concerned, with others the
inhabitants of this Kingdom, to have knights and burgesses in
Parliament, of their own election, to represent the condition
of their country, as the inhabitants of other countries had, it
was by Act of Parliament enacted, that they should have
such, — in the same manner, I say, whenever these Colonies
shall be considered, in Parliament, as objects of taxation, and
be rendered liable to rates, payments and subsidies granted
by Parliament out of their property, they will become con-
cerned equally with others the inhabitants of this Kingdom,
to have knights and burgesses in Parliament, of their own
election, to represent the condition of their country, as the
inhabitants of other countries have, and of right ought to
have. Although a right in Parliament to make laws for\
governing and taxing the Colonies, may and must, in the order
of time, precede any right in the Colonies to a share in the
Legislature, yet there must arise and proceed pari passu^ a
right in the Colonies to claim, by petition, a share in the
representation, by having knights and burgesses in Parliament,
of their own election, to represent the condition of theiry
country. And as, in such circumstances, this right shall arise
200 The Administration of Dependencies
on one hand, so on the other, it may become a dutj in Gorcn-
ment to give them power to send such representames m
Parliament; nay, could one even suppose the Colonics to be
negligent in sending, or averse to send such represcntativa^
it would in such case, as above settled, become the dncrot
Government to require it of them.
As the proposition that the Colonies became entitled
to representation in Parliament whenever it began to tax
them necessarily implied, unless qualified, that all the ex-
isting Tariff Acts relating to the Colonies were unconsti-
tutional and invalid, Pownall had to give some reason by
which the validity of these Acts could be upheld. This
he did in the following language :
Although from the spirit and essence of our Constitation, as
well as the actual laws of it, "the whole body of the Realm,
and every particular member thereof, either in person or by
representation, (upon their own free election) are, by the laws
of the Realm, deemed to be present in the High Court of
Parliament," yet, as the circumstances of the several membeis
of this body politic must be often changing, as many acquisi-
tions and improvements, by trade, manufactures and colonies,
must make great changes in the natural form of this body;
and as it is impossible, both from the gradual nature of these
changes, and from the mode of the representative body, that
this representative body can, in every instance and moment,
follow the changes of the natural passtbus csquis ; it must
necessarily at times, from the nature of things, not be an
actual representative, although, from the nature of the con-
stitution of government, it must, in the interim, continue to
be a just and constitutional representative. And hence, from
the laws of nature, as well as from the nature of our own laws
and Constitution, arises the justice and right, which Parlia-
ment always has had to render the several members of the
Realm liable to rates, payments and subsidies, granted by Parlia-
ment, although such members have not, as yet, had the liberty
and privilege to send knights and burgesses to Parliament, of
Imperial Unity, 1768 201
their own election. Yet on the other hand, as the principle
that no free people ought to be taxed but by their own con-
sent, freely originating from, and given by themselves or their
representatives, is invariable, absolute and fixed in truth and
right, so the mode of the representation in Parliament has
from time to time altered, so as to extend to, and to suit the
mode under which the represented were, from time to time,
found to exist. Hence it was, that many towns, boroughs,
counties, and even dominions, which from anything that did
exist, or was to be found in their antiquas liberiaies^ and liberas
consuetudines^ were not previously represented by members of
Parliament of their own election, have, as they acceded to the
Realm, or increased within the Realm, so as to be equally
concerned to have knights and burgesses in Parliament, of
their own election, to represent them equally as other in-
habitants of the Realm, according to such modes as were
at the time admitted to be legal and constitutional, been
called to a share in the Common Council of the Realm.
Hence it was that the County Palatine of Durham, after many
trials, and a long struggle, was admitted to the privilege of
sending knights and burgesses to Parliament.
Having thus cleared away, as he thought, the historical
obstacles which stood in the way of a declaration that
Great Britain and the Colonies constituted a single Uni-
tary State, he proceeded to argue that to make such a
declaration was simply to recognize existing facts and
conditions, saying:
It is therefore the duty of those who govern us, to carry
forward this state of things to the weaving of this lead [/. ^.,
the leadership in matters of common and general interest]
into our system, that Great Britain may be no more considered
as the Kingdom of this Isle only, with many appendages of
provinces, colonies, settlements, and other extraneous parts,
but as a grand Marine Dominion consisting of our possessions
in the Atlantic and in America united into a one Empire, in a
one center, where the seat of government is.
202 The Administration of E>ependezKies
■>b •- • ' v'« ^-« I til < -^
Would statesmen doubt for a while die
modes which artificial systems prescribe, wonld tiiev- ce? s
look for truth in the nature of things, thej would aooc urcc
what is right, as founded upon fact ; thej would be 3iszx=a&
led into the true system of government, bj foDowiii^ wxx iie
powers of the State, where the actual and real po»iei> of
system of things lead to; they would see, that, br tiie
and mutual interconnections of the different parts of i^ Bdc-
ish dominions throughout the Atlantic and in America,
intercommunion and reciprocation of their alternate
and supplies, by the combination and subordinarioo of tticrr
several interests and powers, by the circulation of tfacir caoo-
merce, revolving in an orbit which hath Great Britain for is
center, — ^that there does exist, in fact, in nature, a real vnioa
and incorporation of all these parts of the British dominiGBS.
an actual system of dominion ; which wants only to be avowed
and actuated by the real spirit in which it moves and has is
being, by that spirit which is the genuine spirit of the Britiib
Constitution, by that spirit from which the British Government
has arisen to what it is, by the spirit of extending the bass oc
its representative Legislature through all the parts to whereso-
ever the rights, interest or power of its dominions extend, —
so as to form (I cannot too often inculcate the idea) a grand
Marine Dominion, consisting of our possessions in the Atlan-
tic, and in America, united into a one Empire, in a one center.
where the seat of government is.
Pownairs proposition to convert the British Empire
into a Unitary State is one which, ever since his time, has
recrudesced at intervals, and which seems likely to recru-
desce frequently in the future. As an apparently logical
necessity from the doctrine of "representative govern-
ment," so-called, the proposition has an extraordinary
fascination for that great body of persons who look upon
that doctrine as the cure-all for political ills, and who re-
gard as political heresy every'suggestion that government
by an elected assembly has its limitations, beyond which
it becomes a political curse instead of a political blessing.
Imperial Unity, 1768 203
As he stated the objections to his own proposition with
very considerable completeness and attempted to answer
them, it may be worth while to quote his words. He
said:
To this measure, not only the Briton but the American also
now objects, that it is unnecessary, inexpedient and danger-
ous. But let us consider their several objections.
The Briton says that such measure is unnecessary, because
the power of Parliament extends to all cases and purposes
required. Be it allowed that this power does, in right and
theory, thus extend; yet surely the reasoning, the precedents,
the examples, and the practice of administrations do show,
that something more is necessary in this case.
The American says it is unnecessary, because they have
Legislatures of their own, which answer all their purposes.
But each Colony having rights, duties, actions, relations,
which extend beyond the bounds and jurisdiction of their re-
spective communities, beyond the power of their respective
Governments, the Colonial Legislature does certainly not an-
swer all purposes, — is incompetent and inadequate to many
purposes. Something more therefore is necessary, either a
common union amongst themselves, or a one common union of
subordination, under the one General Legislature of the State.
The Briton says that it would be inexpedient to participate
with, and communicate to the colonists, the rights and privi-
leges of a subject living and holding his property within the
Realm, — to give these rights to people living out of the Realm,
and remote from it, whose interests are rival and contrary,
both in trade and dominion, to those of this Realm. But the
scheme of giving representatives to the Colonies, annexes
them to, and incorporates them with the Realm. Their in-
terest is contrary to that of Great Britain, only so long as they
are continued in the unnatural artificial state of being con-
sidered as external Provinces; and they can become rivals
only by continuing to increase in this separate state. But
their being united to the Realm, is the very remedy proposed.
The American says, that this measure is inexpedient;
204 The Administration of Dependencies
because, if the Colonies be united to the Realm, and have par-
ticipation in the Legislature, and communication of the rights
and privileges of a subject within the Realm, they must be
associated in the burden of the taxes, and so pay a share of
the interest and principal of the national debts, which they
have no concern in. This is literally the objection which
was made by the Scots, at the proposal of the Union of the
two Kingdoms; and came indeed with reason and propriety
from an independent sovereign Kingdom, which had no con-
cern in the debts of England. But the like objection can
never be made with propriety, reason or justice, by Colonies
and Provinces which are constituent parts of a trading nation,
protected by the British marine. Much less can it be said,
that they have no concern in these debts, when they are debts
contracted, by wars entered into, the first for the preservation
of the Protestant interest and independency of the sovereignty
of the Mother Country; the two latter, solely in defence, and
for the protection of the trade and actual existence of the
Colonies. However, if the Colonies could, on any reasonable
grounds of equity or policy, show any inequality, or even in-
expediency in their paying any part of the taxes which have
a retrospect to times before they were admitted to a share in
the Legislature, there is no doubt but that the same moderation
and justice which the Kingdom of England showed towards
Scotland, in giving that an equivalent, would be extended to
the Colonies, by the Kingdom of Great Britain. And I can-
not but think, that it would not be more than such equivalent,
that the Government should grant them a sum of money suffi-
cient to pay off all their debts which were contracted in con-
sequence of the last war, and are still outstanding; unless
Great Britain engaged from henceforth to consider these as
the debts of the State in general. I cannot but think that it
would not be more than such equivalent, that the Crown
should give up all its right to quit-rents, and that every Act,
whereby any special revenue was raised upon the Colonies,
should be repealed.
The Briton says that this measure would be dangerous; as
it might prove a leading step to the finally removing of the
Imperial Unity, 1768 205
seat of empire to America; to which the true answer is
that the removal of the seat of empire to America or not,
depends on the progressive increase of the territories, trade
and power of the American Colonies; — if continued in the
same unnatural, separate, rival and dangerous state in which
they are at present, that this is an event not to be avoided.
But this measure of uniting the Colonies to the Realm, and of
fixing the Legislature here in Britain, is the only policy that can
obviate and prevent this removal. For, by concentring the
interest and power of the several parts in this Island, the Em-
pire must be fixed here also. But if this removal cannot
finally be prevented, is it better that a new Empire should
arise in America, on the ruins of Great Britain, or that the
regalia of the British Empire extending to America, should
be removed only to some other part of the dominions, con-
tinuing, however, in the same Realm ?
The American says that this measure might be dangerous
to their liberties ; as this calling the American representatives
to a Parliament sitting in Great Britain would remove their
representatives at too great a distance from their constituents,
for too long a time, and consequently from that communica-
tion and influence which their constituents should have with
them; and therefore transfer the will of the Colonies out of
their own power, involving it, at the same time, in a majority,
against which their proportion of representatives would hold
no balance. This objection, if it has any ground for its
fears, is a direct answer to the British objection last men-
tioned. But it proves too much, as, according to this argu-
ment, no remote parts of a State ought to send representatives,
as the seat of empire is also remote. The truth and fact is,
that the mutual situation of Great Britain and America very
well allows every communication which a member of Parlia-
ment ought to have with his constituents; and any influence
beyond that, is unparliamentary and unconstitutional.
As to all objections which arise from apprehensions of
what effect such an additional number of members, acceding
all at once to the House of Commons, might have on the poli-
tics, conduct and internal management of that body: . • •
■ "T '^l
- — I ■ ' ■ ~ -• •—•-•• .•r "'■ i-,-
_ . SSl
Imperial Unity, 1768 207
cept in so far as it had agreed they should not be, or for
a position in which their inhabitants would have consti-
tuted an integral part of the whole population subject to
the unconditioned and unlimited will of a Parliament, in
the Lower House only of which they were represented,
sitting three thousand miles away in England, — would
have been for them to commit political suicide.
Nor had England anything to gain from the adoption
of either Bernard's or Pownall's idea of the relationship.
The relationship advocated by Bernard would have lasted
exactly as long as the Colonies were too weak to require
something better. That any population should in any
respect submit to the unconditional and unlimited power
of any body of people over which they had no control, if
they could help it, was inconceivable. If the Colonies
should ever become the stronger party, it was likely to
go hard with Great Britain. The relationship of Great
Britain to the Colonies advocated by Pownall was plainly
dangerous for Great Britain, as he himself admits, for it
based the whole power, in the long run, on population,
or on wealth and population combined, and, if America
ever exceeded Great Britain in wealth and population,
inevitably resulted in the removal of the Seat of Em-
pire to America.
Under the Imperial Federal Unity that really existed.
Great Britain could retain its position as the Imperial
State so long as its Government was best fitted to act as
the Central Tribunal for the Colonies as States — that is,
so long as it was best fitted to make dispositions con-
cerning their affairs, and needful rules and regulations
respecting them and their inhabitants in accordance with
its dispositions.
CHAPTER XII
THE IMPERIAL SECRETARIAT, 1 768
THOUGH Pownairs work was ineffective in so far as
he tried to convert the English and American peo-
ple to the idea that that which had existed for a
century and a half as the British Empire was really a
British Unitary State, it had, in another direction, an
immediate and direct result. The real purpose of his
book, as it was originally written, was to advocate a
reform in the Home Administration of the Empire.
The important point that he made was that the business
of the British State relating to the Empire in America—
that is, the relations between Great Britain and the Col-
onies— ought properly to be in the charge of a Secretary
of State. This amounted to saying that the relations
with the Colonies were, by the nature of things, differen-
tiated from both the domestic and the foreign relations of
Great Britain, since a Secretariat of State is one of the
great and fundamental Departments of the business of the
State, which exists because of the permanent and funda*
mental differences in the functions of the State in some of
its relations from those which it has in other relations.
This proposition of Pownall's brought into clear light a
distinction regarding the functions of the State, which,
though acted upon from the time when the relations with
the dependencies were placed in the advisory charge of a
Committee of the Privy Council distinct from the Com-
mittee having charge of either the domestic or foreign
affairs of the State, had never been clearly stated. It
208
The Imperial Secretariat, 1768 209
meant that thereafter the British State was to be recog-
nized as the subject and object of a new class of obliga-
tions. Up to that time, only two classes of obligations
to which the State was subject in time of peace had been
recognized — obligations which it owed to its own in-
habitants and municipal corporations, which it per-
formed through the instrumentality of a Secretary or a
Secretarial Board for Home Affairs, and those which it
owed to foreign States and their inhabitants and muni-
cipal corporations, which it performed through the instru-
mentality of a Secretary or Secretarial Board for Foreign
Affairs. The obligations of the State to its own inhabi-
tants and municipal corporations were determined by its
Constitution, by the unwritten law, and by the will of its
Legislature; its obligations to foreign States and their
inhabitants and municipal corporations were determined
by treaty or by the rules of international law. The
proposition to place the relations between Great Britain
and the American Colonies in the charge of a Secretariat
of State, therefore necessarily implied that the Colonies
were neither integral parts of the Realm nor foreign
States, and that the relations between them were neither
domestic nor foreign relations, but were of a different
kind from either, to be determined neither by the Con-
stitution, the unwritten law, or the statutes of the State,
nor by treaties or the international law, but by an equity
derived from all these, as principles.
At the time Pownall wrote, though the difference in
functions between the Home Department and the For-
eign Department was recognized, there did not exist
in Great Britain a Home Secretary and a Foreign
Secretary having charge of the respective duties of these
Departments. There were two Principal Secretaries
of State, but their duties were determined arbitrarily and
geographically, instead of rationally and scientifically.
One Secretary had charge of what was called the Northern
2IO The Administration of Dependencies
Department, including Denmark, Flanders, Germany,
the German Principalities and States, Holland, Poland,
Saxony, Prussia, Russia, and Sweden ; and the other of
the Southern Department, which included England, Scot-
land, Ireland, the Channel Islands, the Isle of Man, the
other islands near Great Britain, the American and West
Indian Colonies, the East Indian establishments, France,
Spain, Portugal, Switzerland, Italy, the Barbary States,
and Turkey. The Secretary of State for the Southern
Department was thus the Secretary of State for Home
and Imperial Affairs and in part for Foreign Affairs;
and the Secretary for the Northern Department the
Secretary in part for Foreign Affairs.
In advocating the establishment of a Secretariat of
State to have charge of the relations with the Colonies,
Pownall said :
The forming some general system of administration, some
plan which should be (whatever may be the changes of the
Ministry at home, or in the Governors and officers employed
abroad) uniformly and permanently pursued by measures
founded on the actual state of things as they arise, leading to
this great end, is, at this crisis, the precise duty of Govern-
ment.
To enable the British nation to profit of these present cir-
cumstances, or of the future events, as they shall successively
arise in the natural procession of effects, it is necessary that
the Administration form itself into such establishments for the
direction of these interests [the British commercial interests]
and powers, as may keep them [the Colonial commercial in-
terests then beginning to arise] in their natural channel, as may
maintain their due connections with the Government, and
lead them to the utmost effect they are capable of producing
towards this grand point.
The first spring of this direction, the basis of this govern-
ment, is the Administration at home. If that Department of
The Imperial Secretariat, 1768 211
the Administration which should have the direction of these
matters, be not wisely and firmly bottomed, be not so built,
as to be a practical — be not so really supported by the powers
of the Government, as to be an efficient Administration, all
measures for the administration of these interests, all plans
for the government of these powers are vain and self-delusive;
even those measures that would regulate the movements and
unite the interests under a practical and efficient Administra-
tion, become mischievous meddling impertinences where that
is not, and must either ruin the interests of these powers, or
render a breach of duty necessary to the Colonies that they
may avoid that ruin.
That part of the Government, which should administer this
great and important branch of business, ought, in the first
place, to be the center of all information and application from
all the interests and powers which form it; and ought from
this center, to be able, fully, uniformly, and efficiently, to dis-
tribute its directions and orders. Wherever the wisdom of
State shall determine that this center of information shall be
fixed; from whatever Department all appointments, orders,
and executive administration shall issue, it ought somewhere
to be fixed, known, of record, and undivided. That it may
not be partial, it ought to extend to all times, and all cases.
All application, all communication, all information should
center immediately and solely in this Department. This
should be the spring of all nominations, instructions, and
orders. It is of little consequence where this power of admin-
istration is placed, so that the Department be such as has the
means of the knowledge of its business, is specially appro-
priated to the attention necessary to it, and officially so formed
as to be in a capacity of executing it. Whether this be a
Secretary of State, or the Board of Trade and Plantations, is
of no consequence ; but it ought to be entirely in either the
one or the other. Where the power for the direction is lodged,
there ought all the knowledge of the Department to center;
therefore all officers, civil or military, all servants of the
Government, and all other bodies or private persons ought to
correspond immediately with this Department, whether it be
2 1 2 The Administration of Dependencies
the Secretary of State or the Board of Trade. While the
military correspond with the Secretary of State, the civil in one
part of their office with the Secretary of State, in another with
the Board of Trade; while the navy correspond in matters not
merely naval with the Admiralty, while the engineers corre-
spond with the Board of Ordnance, officers of the revenue
with the several Boards of that branch, and have no com-
munication with the Department which has, or ought to have,
the general direction and administration of this great Atlantic
and American, this great commercial interest, who is to col-
lect— who does, or ever did collect — into a one view, all
these matters of information and knowledge ? What Depart-
ment ever had, or could have, such general direction of it, as
to discuss, compare, rectify and regulate it to an official real
use ? In the first place, there never was yet any one Depart-
ment formed for this purpose; and in the next, if there was,
let any one acquainted with business dare to say, how any at-
tempt of such Department would operate on the jealousies of
the others. Whenever, therefore, it is thought proper, (as
most certainly it will, some time or other, though perhaps too
late), to form such Department, it must (if I may so express
myself) be sovereign and supreme, as to every thing relating
to it; or to speak plainly out, must be a Secretary of State's
office in itself. When such is formed, although the military,
naval, ordnance, and revenue officers should correspond, in
the matters of their respective duties, with the Departments
of the Government to which they are more immediately sub-
ordinate and responsible, yet, in general matters of informa-
tion, or points which are matters of government, and the
department of this State Office, they should be instructed to
correspond and communicate with this Minister. Suppose that
some such Minister or Office now existed, is it not of conse-
quence that he should be acquainted with the geography of
our new acquisitions ? If, therefore, there have been any
actual surveys made of them, should not such, or copies of
such, be sent to this Minister or Office ? If a due and official
information of any particular conduct in our Colonies, as to
their trade, might lead to proper regulations therein, or might
The Imperial Secretariat, 1768 213
point out the necessity of a revision of the old laws, or the
making further provision by new ones, would it not be proper
that the Custom House officers settled there should be directed
to correspond and communicate with this Minister, or Office,
on these points ? Would it interfere with their due sub-
ordination, as officers of the revenue, to the Commissioners of
the Customs ? If there were any events arising, or any cir-
cumstances existing, that might affect the state of war or peace,
wherein the immediate application of military operations were
not necessary or proper, should not the military and naval
officers be directed to communicate on these matters with this
Minister, or Office ? Should not, I say, all these matters of
information come officially before this Minister, if any such
State Minister, or Office, was established ?
As of information and knowledge centering in a one Office,
so also of power of executing, it should spring from one un-
divided Department. Where the power of nominating and
dismissing, together with other powers, is separated from the
power of directing, the first must be a mere privilege or per-
quisite of office, useless as to the King's business or the interest
of his Colonies, and the latter must be inefficient. That Office,
which neither has the means of information, nor can have
leisure to attend to the official knowledge produced thereby,
nor will be at the trouble to give any official directions as to
the ordinary course of the administration of the American
matters, must certainly be always, as it is, embarrassed with
the power of nomination, and fettered with the chain of ap-
plications which that power drags after it. On the other hand,
what effect will any instructions, orders or directions have
from that Board, which has not interest to make or dismiss one
of the meanest of its own officers ? This, which is at present
the only official channel, will be despised ; the Governors, nay,
every the meanest of the officers in the Plantations, looking
up solely to the giving power, will scarce correspond with the
directing, — nay, may perhaps contrive to make their court to
the one, by passing by the other. And in any case of im-
proper conduct of these officers, of any neglect of duty, or
even of misdemeanor, what can this directing power do, but
214 The Administration of Dependencies
complain to the Minister who nominates, against the officers
appointed by him ? If there be no jealousies, no interfering
of interests, no competitions of interfering friends, to divide
and oppose these two Ofiices to each other ; if the Minister is
not influenced to continue, upon the same motives upon
which he first appointed ; if he does not see these complaints
in a light of opposition to his nomination and interest, — some
redress may, after a due hearing between the party and the
Office, be had, the authority of the Board may be supported,
and a sort of remedy applied to the special business, but
a remedy worse than the disease, — a remedy that dishonors
that Board, and holds it forth to the contempt of those whom
it ought to govern.
Although Pownall had expressed, in the words above
quoted, his conviction that it made no difference whether
the Secretariat for Imperial Affairs were vested in a single
individual or in a Secretarial Board, he showed, in the
first edition of his book, a plain preference for a Secre-
tarial Board, and made a strong argument in favor of
converting the Board of Trade and Plantations into this
Secretarial Board. On this subject his words were :
It is not only from the natural impracticability of conduct-
ing this administration under a divided state of power and
direction, that the necessity of forming a some one State Office,
or Minister of State, for the executing it, arises: but the very
nature of the business of this Department, makes the officer
who is to administer it a State Officer, a Minister for that
Department, and who ought to have immediate access to the
closet. I must here repeat, that I am no partisan of the
Secretary of State's office, or for the Board of Trade: I have
ceased to have any connection of business with either, and
have not the least degree of communication with the one or
the other. Without reference, therefore, to either, but with
all deference to both, I aim to point out, that the Department
of the Administration of Trade and Plantations, be it lodged
where it may, should be a State Office, and have a Minister
The Imperial Secretariat, 1768 215
of State. That Office, or Officer, in a commercial nation like
this, who has the cognizance and direction (so far as the
Government can interfere) of the general trade of the King-
dom— whose duty it is to be the depository and reporter of
the state and condition of it, of everything which may ad-
vance or obstruct it, of the state of manufactures, of the
fisheries, of the employment of the poor, of the promoting the
labor and riches of the country, by studying and advising
every advantage that can be made of every event which arises
in commercial politics and every remedy which can remove
any defect or obstruction, — who is officially to prepare every
provision or revision necessary in the laws of trade, for the
consideration of Parliament, and to be the conductor of such
through the necessary measures, — is certainly an Officer of
State, if the Secretary of State, so-called, is. That Office, or
Officer, who has cognizance and direction of the Plantations
in every point of government, in every matter judicial or com-
mercial,— who is to direct the settlements of colonies, and to
superintend those already settled, — who is to watch the
Plantations in all these points, so far as they stand related to
the government, laws, courts and trade of the Mother Country
— is certainly an Officer of State, if the Secretary of State,
so-called, is. That Office, or Officer, who is to report to his
Majesty in Council on all these points, whose official fiat, or
negative, will be his Majesty's information in Council as to
the legislature in the Colonies, is certainly an Officer of State.
That Office, or Officer, who is to hear and determine on all
matters of complaint, and maladministration, of the Crown
officers and others, in the Plantations, and can examine wit-
nesses on oath, is surely an Officer of State. That Office, or
Officer, who is to correspond with all the servants of the
Crown on these points, and to be the issuer of his Majesty's
orders and instructions to his servants, on these many, great,
and important points of State — is certainly his Majesty's Sec-
retary, and certainly a Secretary of State.
But if it be considered further, who the persons are, that
are of this very great and extensive Commission of the Board
of Trade and Plantations, — namely, all the great Officers of
2i6 The Administration of Dependencies
State for the time being, with the Bishop of London, the Sec-
retaries of State for the time being, and those more especially
called the Commissioners of Trade, it will be seen, that it is
no longer a doubt or a question, as to its being an Office of
State. It is actually so, and has, as an Office, as a Board,
immediate access to his Majesty in Council, even to the report-
ing and recommending of officers. This was the plan whereon
it was originally founded, at its first institution, by Lord
Somers.
That great statesman and patriot saw that all the powers of
the Government and the several Departments of Administra-
tion disunited, were interfering with, and obstructing each
other on this subject, and not they only here in England, but
that the respective Officers of these several Departments car-
ried all this distraction into the detail of their business in the
Colonies, which I am afraid is too much the case even at this
day: he saw that this administration could not be conducted
but by an entire union of all the powers of the Government,
and on that idea formed the Board of Trade and Plantations,
where, and where alone, these powers were united in a one
Office, — in which Office, and in which alone, all the business
of the Colonies ought therefore to be administered; for if such
union be necessary, here alone is that official union. Unhap-
pily for the true interest of the Government, partly from an
entire neglect of this administration in time past, and partly
from the defective partial exercise of it, since some idea of
these matters began again to revive, this great and wise plan
hath been long disused ; but it is fortunate for the public in this
important crisis, that such is the temper of particulars, such
the zeal of all for his Majesty* s service, such the union of his
servants, that the spirit of service predominates over these
natural defects : so that all who wish well to the interest of this
country, in its trade and colonies, may hope to see that union,
at present only Ministerial, become Official in this business,
and revive again that great, wise, and constitutional plan of
Office, actuated under the real spirit of it.
The only question at present is, who shall be the Executive
Officer of this Department of State; whether the Secretary of
The Imperial Secretariat, 1768 217
State, properly so-called; or the First Lord, and other Com-
missioners, properly called the Board of Trade; or whether it
shall remain divided, as it is, between the several great Depart-
ments of Administration ; or whether some more official and
practical division of this administration may not be made.
Suppose now, it should be thought proper, that this admin-
istration be placed in the Secretary of State's office, all the
administration of the Plantations may be given to the Southern
Department: yet the great object of the general trade of Great
Britain must be divided between the Southern and the
Northern, as the matters of consideration happen to lie in
the one or in the other Department; and how will the
Southern Department act, when any matter of commerce
arises in the Plantations, that has special connections or in-
terferings with the Dutch, Hamburg, Danish or Russian trade?
It cannot lie in the Board of Trade, properly so-called,
until it be found proper, and becomes a measure of the
Government, to erect that Board into a Secretary of State's
Office for this Department, which, first or last, it most cer-
tainly will do. That, therefore, the great business of Trade
and Plantations may not run into confusion, or be at a stand,
that it may be carried to the effect proposed, held forth, and
desired by the Government, and necessary to it, — all that can
be done at present is, to put the whole executive administra-
tion, the nomination, correspondence, issuing of instructions,
orders, &c., under the Secretary of State, if he has leisure to
attend to it, and can undertake it; and to make the Board of
Trade a mere Committee of Reference and Report; instead
of reporting to the King in Council, to report to the Secre-
tary of State, who shall lay the matters before his Majesty,
and receive and issue his orders, — who shall refer all matters
to this Committee, for their consideration, and shall conduct
through the Legislature all measures necessary to be deter-
mined thereby. If this be not practicable, there is no other
alternative, than to do directly what ought to be done, and
what, some time or other, must be done, — the making the
Officer who conducts this Department a Minister for that De-
partment, with all the powers necessary thereto. For until a
2i8 The Administration of Dependencies
practical and efficient Administration be formed, whatever
the people of this country may think, the people of the
Colonies, who know their business much better than we do,
will never believe the Government is in earnest about
them, or their interest, or even about governing them; and
will, not merely from that reasoning, but from necessity of
their circumstances, act accordingly.
In 1768, Pownall had evidently perceived that the
Committee of the Privy Council for Plantation Affairs
was a factor in the situation which had to be considered,
and that, since it had the immediate access to the King,
it must be abolished, either directly, or indirectly by con-
verting it into the Secretarial Board, since so long as it
remained in existence in the form in which it then was,
with the right and duty of advising the King concerning
matters of Imperial administration, any individual or
body of individuals having charge of the administration
of the Imperial affairs would be nothing more than an
Under-Secretary. As that Committee was too old an in-
stitution to be abolished, except by the indirect method
of increasing its powers and thus converting it into a
Secretarial Board, his final conclusion seems to have been
that the proper course was to give to the Committee of
the Privy Council for Plantation Affairs administrative as
well as deliberative functions and to make it the Secre-
tarial Board for Imperial Affairs, and to retain the Board
of Trade and Plantations as the under-Secretarial Board
with duties of examination, reference, and report. In
the fourth edition of his book, therefore, he added the
following :
Until an effective administration for Colony affairs be estab-
lished by the Government, all plans for the governing of those
countries under any regular system of policy, will be only
matter of speculation, and become mere useless opprobrious
theory. All official information given and transmitted by
The Imperial Secretariat, 1768 219
those whose duty it is to give it, will, as accident shall de-
cide, or as the connections of parties shall run, be received or
not; nay, it may so happen, that those officers who should
duly report to the Government the state of these matters, will,
as they find themselves conscientiously or politically disposed,
direct that information to those who are in, or to those who
are out of the Administration. Every leader of every little
flying squadron will have his runner, his own proper channel
of information, and will hold forth his own importance in
public, by bringing his plan for American affairs before it.
All true and regular knowledge of these affairs being dispersed,
will be evaporated; every Administration, even Parliament
itself, will be distracted in its councils by a thousand odds
and ends of proposals, by a thousand pieces and parcels of
plans, while those surely, who are so deeply concerned as the
Americans themselves are, will not be excluded from having
their plan also ; they will have their plan also, for however
peaceably they may submit to the direction of the powers of
the Government, derived through a regular established per-
manent mode of administration, they will, by any means that
they can justify, refuse to have their interests directed and
disposed of by every whim that every temporary empiric can
force into execution. If therefore we mean to govern the
Colonies, we must previously form at home some practical
and efficient administration for Colony affairs.
Before the erection of the Board of Trade as a particular
Office, the business of the Colonies was administered with
efficiency; the King himself in Council administered the
government of his Colonies; each State Officer, in his proper
Department, was no otherwise Minister than as ministerially
executing the orders which he received, or officially reporting,
from his respective Department, the information which he had
to lay before the King in Council. Since the establishment of
that Office called the Board of Trade, the administration of
the Colonies has either laid dormant, or been overlaid; or,
if taken up, become an occasion of jealousy and struggle for
power between that Board and every State Officer who hath
been deemed the Minister for the time being. From this
220 The Administration of Dependencies
jealousy and this struggle, this Boajrd has been supposed
to interfere at different times with every other Office,
while at one time it has had the powers and held the
port of a Minister's Office, and at another has become a mere
Committee, inefficient as to execution, unattended to as report-
ing. The Colonies, and the officers of the Colonies, have one
while been taught to look up to this Board as the Minister for
their affairs, and at another, have learned to hold it in that
contempt which inefficiency gives; which contempt, however,
has not always stopped there.
To prevent, on this critical occasion, all such appearances,
on one hand, from misleading those who are to be governed,
and to put an end, on the other, to all interfering amongst
those who are to govern in this line of business, the Board of
Trade should either be made what it never was intended to be,
a Secretary of State's Office for the Plantations, or be con-
fined to what it really is, a Committee of Reference for
examination and report, for stating and preparing business,
while the affairs of the Colonies are administered solely by the
King in Council, really acting as an efficient Board for that
purpose. Somewhere there ought to be an efficiency, and in
this Supreme Board is the proper residence of it. To place it
here would be really and in fact the establishing of an Admin-
istration for Colony Affairs.
This conclusion of Pownall's — that the Committee of
the Privy Council for Plantation Affairs should be con-
verted into the Secretarial Board for Imperial Affairs, and
the Board of Trade and Plantations declared the under-
Secretarial Board to examine into Imperial questions on
their own motion or on reference and to report to the
Secretarial Board — was a strictly scientific solution of the
whole problem. It of course required, in order to com-
plete the organization of the Government, the establish-
ment of a Secretariat for Home Affairs and a Secretariat
for Foreign Affairs — the Home Secretariat ultimately re-
sponsible to the House of Commons, the Imperial Sec-
The Imperial Secretariat, 1768 221
retariat responsible both to the King and the whole
Parliament as representatives of the Imperial State, and
the Foreign Secretariat responsible to the King.
This final recommendation of Pownall's came too late,
for on February 27, 1768, Lord Hillsborough, who had
previously been the President of the Board of Trade and
Plantations, was commissioned as ''Secretary of State for
the Colonies" — not because it was the intention of the
British Government to recognize the Colonies as States
united, as such, in a relationship of political subordina-
tion, to the State of Great Britain, and forming with it a
Federal Empire, and to provide for the application of
just principles to the exercise of the functions of Great
Britain, as the Imperial State, but because, as the
Letters Patent containing the Commission stated, "the
public business of the Colonies and Plantations increas-
ing, it is expedient to appoint one other Principal
Secretary of State, besides the two ancient Principal
Secretaries."
As the Committee of the Privy Council for Plantation
Affairs and the Board of Trade and Plantations were still
left in existence, the only effect of the appointment of a
Secretary of State for the Colonies was to make this Sec-
retary an Under-Secretary for Imperial Affairs, along with
the Board of Trade and Plantations, except in so far as
he could succeed in inducing the King to act directly on
his advice, — which meant that he had to induce the King
to prevent certain matters from being considered by the
Committee of the Privy Council for Plantation Affairs.
This was, of course, a difficult matter, and as the Secre-
tary of State for the Colonies was a member of the Cabi-
net, and as the Cabinet was tending every day to become
responsible to the House of Commons, the Secretary for
the Colonies was interested, for his own aggrandizement,
to regard the affairs of the Empire as the affairs of the
Realm and thus, by throwing the management of them
222 The Administration of Dependencies
into the hands of Parliament, to free himself from the in-
terposition of the Committee of the Privy Council for
Plantation Affairs.
The title given to the incumbent of the office — ^the Sec-
retary for the Colonies — was unfortunate, since it tended
to make the British public consider the Colonies as mere
appendages or appurtenances of the Realm, and to make
the Americans regard them as States foreign to Great
Britain. Had the officer been called the Secretary for
Imperial Affairs, and the Federal Empire of Great
Britain thus recognized, the duties of the Secretary
would have been understood by all to be, to ascertain the
rules and regulations equitably and justly necessary for
the common welfare of the component parts of the whole
Empire, considering the Constitution, laws and economic
conditions of the Imperial State and the charters, laws,
customs, and economic conditions of the Colonies, and
to advise the King and Parliament so that they, as the
representatives of the Imperial State, might cause such
rules and regulations to be put in force.
Pownall's proposition that the political organism there-
tofore called the British Empire was a Unitary State was
exactly contradictory of his proposition that there ought
to be a special Secretariat of State having charge of the
relations with the Colonies. If the Colonies were inte-
gral parts of the British State, there was no more reason
why the relations with them should be placed in charge
of a Department of the Government of Great Britain,
than that the relations with any County in England
should be made a Department of the Government. If,
therefore, Pownall was right when he claimed that the
affairs of the Colonies ought to be in the charge of a Sec-
retary of State's office, he was wrong when he claimed
that the Colonies were integral parts of the British State,
and vice versa.
The British Government followed exactly the same
The Imperial Secretariat, 1768 223
course of inconsistency. The Secretary of State for the
Colonies was appointed, and at the same time the Colo-
nies were treated by Parliament as integral parts of the
Realm,
226 The Administration of Dependencies
and invaluable right of every British subject in these Colonies;
— also, "that it is the right of the British subjects in these
Colonies to petition the King or either House of Parliament."
This is all very true and very sensible; but who those *• Eng-
lishmen " or " British subjects " in the Colonies are, to whom,
and to whom only, these rights belong, cannot easily be dis-
covered. They cannot be the inhabitants of the Colonies, or
those who have been bom there; for the former resolutions
say that the Colonies are " not within the British Realm," and
that the people who are bom there are not the ' ' natural-bom
subjects " of the King, ** born within the Realm."
Having thus seen upon what sort of foundations the different
Colony Assemblies build their several titles to the rights and
privileges of Englishmen, and that each superstructure, at the
approach of reason, vanishes like "the baseless fabric of a
vision," I will not fatigue the reader with a discussion of the
arguments introduced by the Colony advocates in support of
the Assemblies' resolutions. Whatever they can urge in be-
half of the Colonies' claim to the rights and privileges of
Englishmen, whilst they deny that they are subjects of the
Realm, or natural-born British subjects, and that the Colonies
are within the Realm, must be obnoxious to the same charges
of inconsistency and absurdity to which the Assemblies' reso-
lutions are so palpably liable ; and the simplest of my country-
men can easily detect the most artful American sophister, by
insisting upon his answering this plain question — Are the
people in the Colonies British subjects, or are they aliens or
foreigners ?
The Assemblies and their advocates, aware of this dangerous
dilemma, have never directly and explicitly declared, as the
reader must have observed, that they are, or that they are not,
British subjects; that is, subjects of the British State or com-
munity. They avoid that declaration by every artifice and
subterfuge that words can supply them with, — they are at one
time "Englishmen," at another "the children, and not the
bastards of Britons," they are "free Britons," "the King of
Great Britain's liege subjects," "they owe the same fealty and
allegiance to his Majesty that is due to him from his subjects
America's Position Criticised, 1769 227
in Great Britain," — and numberless other equivocal profes-
sions, which serve to elude the main question. At the same
time, as if under each character they had defined their condi-
tion to be that of British subjects, they boldly draw the conse-
quence, that " they are entitled to all the rights and privileges
of natural-born subjects in common with the people of Eng-
land." That they cannot, however, maintain their title to
those rights upon any other ground than that of their being
British subjects, bom and inhabiting within the Realm, is, I
think, sufficiently evident; and therefore, that they may fail
in proving that they are not British subjects, and that the
Colonies lie without the Realm, is the most friendly wish I
can give them.
There was no answer to this criticism, in so far as it
charged that the resolutions were inconsistent with each
other. The rights, privileges, and immunities of the
Colonies and their inhabitants arose out of the character
of the people of the Colonies and the geographical rela-
tionship of the Colonies to Great Britain, and were de-
termined by the principles of the general public law.
Because the Imperial State happened to have a constitu-
tion under which the inhabitants enjoyed a high degree
of political freedd^, it did not necessarily follow that the
American Colonies were entitled to the same freedom.
The British Constitution was, of course, in force in the
Colonies except in so far as it was rendered inapplicable
by their local conditions and circumstances, but the in-
habitants of the Colonies were entitled to the same
rights, privileges, and immunities as the inhabitants of
the State of Great Britain only in case their conditions
and circumstances were the same as those of the people
of England. The fact that the most of the original
American colonists were English did not necessarily give
them the rights, privileges, and immunities of English-
men. If they had colonized a tropical instead of a tem-
perate region, these very colonists might, after a century
228 The Administration of Dependencies
and a half, by reason of the local conditions and circum-
stances, have been wholly unfitted to exercise the same
political rights as Englishmen at home. That the Ameri-
cans were entitled to the same rights and liberties as the
inhabitants of Great Britain was undoubtedly true, be-
cause they were, as matter of fact, on a par with the in-
habitants of Great Britain in civilization. That they
owed "due subordination" to Parliament as an "August
Body," and not "obedience to its laws" as their "Su-
preme Legislature," was undoubtedly also true, but this
arose from their geographical situation with respect to
Great Britain, which rendered impossible a merger of
their populations with that of Great Britain so as to form
a Unitary State.
The distinction between internal and external taxes
was very gingerly touched upon by the authors of the
pamphlet, — evidently because they saw that there was a
very large truth underlying this distinction, namely, that
the principal function of the Central Government in a
Federal State, and of the Imperial State in a Federal
Empire, is to attend to the external affairs of the Mem-
ber-States, since it is with regard to these affairs that
there is principally needed a guidance and direction in
the common interests. They passed over this subject
with the remark that the distinction had been abandoned
by the Americans themselves, saying :
However cautious the Colonies have been in admitting that
they are British subjects in any sense whatever, they do not
nevertheless, as yet, reject the authority of Parliament to
bind them in any case, save in the article of taxation; and,
against even this right in Parliament, they do not urge that
they are not British subjects, and consequently not within the
jurisdiction of the supreme British Legislature, because that
plea would involve every other right of jurisdiction in the de-
cision of that question ; and it is the artifice of the managers
America's Position Criticised, 1769 229
on behalf of the Colonies, to avoid general questions, and to
keep back and conceal consequences, lest the unsuspecting
people of England should too soon catch the alarm, and re-
solve to withstand their first attempts at independency.
When the repeal of the Stamp Act was their object, a dis-
tinction was set up between internal and external taxes; they
pretended not to dispute the rights of Parliament to impose
external taxes, or port duties, upon the Colonies, whatever
were the purposes of Parliament in laying them on, or how-
ever productive of revenue they might be. Nay, Doctor
Franklin tells the House of Commons, that ** they have a
natural and equitable right to some toll or duty upon mer-
chandises carried through that part of their dominions, viz.
the American seas, towards defraying the expense they are at
in ships to maintain the safety of that carriage.** This, how-
ever, was only the language for 1765 and 1766; but when
Parliament seemed to adopt the distinction, and waiving for
the present the exercise of its right to impose internal taxes,
imposed certain duties on merchandises imported into the
Colonies, and carried through those seas which the Parliament
was told were [its dominions], the distinction between internal
and external taxes is rejected by the Colony advocates, and a
new one devised between taxes for the regulation of trade,
and taxes for the purpose of revenue.
The authors of the pamphlet next proceeded to criti-
cise the distinction which they claimed that Dickinson
had made in his Farmer s Letters^ between taxation for the
regulation of trade and taxation for purposes of revenue,
by showing that the admission by the Colonies of an un-
conditioned and unlimited power in Parliament to regu-
late the trade of the Colonies was a far more serious
matter for them than would be an admission that Parlia-
ment had the right to tax them, since taxation implied
permission to exercise all activities on condition of pay-
ing a tax, and the exercise of them to the greatest extent
so as to produce the greatest revenue, whereas regulation
230 The Administration of Dependencies
of trade might extend to the entire prohibition of activi-
ties. They said on this subject :
This new distinction, however, between taxes for the regu-
lation of trade, and taxes for the purpose of revenue, as far
as it respects the right of Parliament to impose the one, but
not the other, is, of all absurdities, the most ridiculous that
ever was contended for. It is saying, in other words, that
Parliament has a right to impose a heavy tax, but not a small
one. It may lay one so grievous, that nobody can afford to
pay it; but it has no authority to impose one which may be
easily borne.
I believe it is the first time that the Colonies of any State
have complained of the injustice of the Mother Country in
laying taxes upon them which were not sufficiently heavy; nor
was it ever before discovered that the proper means to redress
the grievances of any people, were to increase their taxes.
And yet this is certainly the case in the present instance be-
tween Great Britain and her Colonies; for, if Parliament had
augmented the duties upon foreign molasses, instead of reduc-
ing them, or had it laid on another shilling upon black teas
exported to the Colonies, instead of taking one off, the right
to do so would have been admitted. But (says Mr. Dickin-
son) the heavy tax would have operated as a prohibition, which
is a regulation of trade ; the light tax is intended to be paid,
and is laid for the purpose of revenue.
It is the purpose of Parliament in laying the tax, which, it
seems, gives it the right of laying it. Curious reasoning this!
Now, should it happen that Parliament was at any time mis-
taken in its purpose, and that a tax which it imposed with an
intention that nobody should pay it, — that is, that it should
operate as a prohibition, — should really turn out to be such a
tax as the commodity on which it was charged could bear, and
the people in the Colonies were willing to purchase it at the
price the tax had raised it to, what should we do then ? If
the tax be paid, it then becomes a revenue tax, and no longer
a prohibitory one ; and is thenceforward a grievance, and an
America's Position Criticised, 1769 231
infringement of the rights of the Colonies. On the other
handy suppose Parliament should be mistaken in a tax it laid
for the purpose of revenue, and it turned out a prohibition,
would the tax then become a constitutional one ?
Nevertheless, say the Colony advocates, the essential dis-
tinction between the two sorts of taxes will subsist in the pur-
pose for which the tax is laid, no matter how it may operate;
and for this essential distinction we are referred to our old
statutes. Let the reasoning of Parliament in the preamble to
the 15th of Charles the Second, chapter the eleventh, be the
measure of this distinction, and then we shall see where the
boundary line is to be drawn.
**In regard," says this statute, "that his Majesty's Planta-
tions, &c. beyond the seas, are inhabited and peopled by his
subjects of this his Kingdom of England, for the maintaining
a greater correspondence and kindness between them, and
keeping them in a firmer dependence upon it, and rendering
them yet more beneficial and advantageous to it, in the further
employment and increase of English shipping and seamen,
vent of English woolen, and other manufactures and commod-
ities, rendering the navigation to and from the same more
safe and cheap, and making this Kingdom a staple, not only
of the commodities of those Plantations, but also of the com-
modities of other countries and places; for the supplying of
them, be it enacted, &c.** These several purposes are there-
fore to be deemed regulations of trade; and to whatever tax
or duty which may be imposed with any of those purposes,
the Colonies ought to submit, notwithstanding a revenue
should incidentally arise from them. Be it so. One purpose,
then, it appears, is, the making the Colonies a "vent" for Brit-
ish "manufactures." Now if the British manufacturers are
heavily taxed, and the American manufacturer pays no taxes,
or very small ones, the British manufactures must come much
dearer to the consumer in the Colonies than American manu-
factures, and consequently the British manufactures will not
sell there, and the Colonies will no longer be a vent for them.
To prevent which, there can be no means so evident or
effectual, as taking off taxes from the British manufacturers
232 The Administration of Dependencies
and laying them on the American manufacturers. With this
view, and with this purpose, of securing a ** vent " for the
British " manufactures," an Act of Parliament, laying a poll-
tax upon all manufacturers of linen or wool, or a heavy tax
upon all kinds of manufactures which should be made, in the
Colonies, would be extremely proper. For this purpose also,
all materials for manufactures should be taxed, unless ex-
ported to Great Britain ; as should all tools and instruments
for manufacturing. The encouragement of English navigation
likewise opens another vein for drawing off the life-blood of
the Colonies, as they call their money. Tonnage duties upon
all ships and vessels built in the Colonies; duties upon all
materials for ship-building, of the product of the Colonies, or
imported there; and, in short, there is scarcely a tax, internal
or external, which the people of England are liable to, that
might not be imposed on the Colonies for some of these pur-
poses. Besides, if we enter thoroughly into the matter, we
shall find that it is always an argument of the want of finance
ability in the Minister who proposes any tax which is not in-
tended to operate beneficially as a regulation, as well as to
produce revenue.
A land-tax is a judicious regulation, inasmuch as it excites
the land-owner to cultivate and improve his lands; and with
this very view, taxes are laid upon unimproved lands in Amer-
ica, by the Colony Assemblies. Thus our East India duties
are many of them calculated to promote our own manufac-
tures, as well as to raise a revenue. Thus the duties upon
French goods were imposed with a view to check the trade of
France, to encourage our own manufactures, and, at the same
time, to raise a fund for defraying the public expenses. So
likewise are a multitude of our taxes upon articles of luxury
and of extravagance in our home consumption; so likewise
are the taxes upon many of our exports, to prevent the manu-
facture of our raw material abroad, and to encourage it at
home.
The double tax upon the Roman Catholics was laid with a
view to weaken that interest, as well as to raise a revenue;
and it was considered and urged as the strongest motive for
America's Position Criticised, 1769 233
laying on the British stamp duties upon licenses to keep ale-
houses, to sell wine and spirituous liquors, and even those
upon all law proceedings, and upon the admission of attorneys,
and many others, that those duties would greatly operate to
discourage and diminish what was wished to be checked, as
well as produce a public revenue.
Upon this principle, even the Stamp Act in America
might have been considered as a regulation; for it was in-
tended likewise to prevent or detect the forgery of deeds, wills,
or other instruments; to discourage, by a high duty, the grant
of large quantities of land to one person; to make all law
proceedings and instruments in the English language, and
thence incite the foreign subjects to learn it; to discourage a
spirit of unnecessary litigation in the Colonies; to prevent
disorders which frequently happen from tippling-houses in
remote places, and from selling spirituous liquors to the
Indians in the woods; to make the entries and clearances of
ships more regular; and to prevent false cockets, and several
things of the like nature.
This boasted distinction between taxes for the regulation of
trade, and taxes for the purpose of revenue, we therefore see
is without a difference, and will in no sort serve to protect the
Colonies from Parliamentary internal and external taxation,
however it may serve for a pretence, under which to strip
Parliament of all jurisdiction over the Colonies.
Evidently realizing that they had gone farther than
they ought in interpretating the Farmer's Letters as ad-
vocating a distinction between taxes for the regulation of
trade and taxes for the purposes of revenue, the authors
next attempted to show that what Dickinson had un-
questionably advocated, namely, that the sole power of
Parliament was to regulate trade otherwise than by taxa-
tion, made no difference in the principle. This they did
by arguing that there were practically no regulations of
trade for the Colonies conceivable which would not be
subject to all the objections of a tax. They claimed that
234 The Administration of Dependencies
Dickinson had in effect admitted this when he said, in
the Farmer s Letters^ that **an Act of Parliament, com-
manding us to do a certain thing, if it has any validity,
is a tax upon us for the expense that accrues in comply,
ing with it." After quoting this passage and others of
like purport from the Farmer s Letters^ they proceeded :
If we take the sense of these several passages together, we
shall find that the exercise of sovereign authority over the
Colonies is connected so intimately with the right of taxation,
that the one cannot subsist without the other in any case what-
soever. The impressing wagons or boats for the transporta-
tion of troops or their baggage; the quartering them even
upon public houses; their trampling down a man's fences in
their march, or encamping upon his grounds; their passage
over ferries or toll-bridges — are all taxes, it seems; for in all
these cases, something is furnished to the troops, or something
is done by them, or something is commanded to be done for
them, from whence some expense will accrue to the people in
the Colonies. And if Parliament has no right to require any
of these things to be done, without the consent of the Colonies,
it can have no right to keep up any troops in the Colonies, or
to march them through the country without their consent,
which is repugnant to every idea of sovereignty on the one
part, and of dependence on the other; besides, there can be
neither restraints nor regulations of trade but what must fall
within some of these descriptions of taxes. To oblige a plan-
ter to carry his products to a port of entry, when a vessel can
take them in at his own landing-place, nay, to oblige a mer-
chant to ship his goods from the Custom House quay, when
another wharf is more convenient to him, is to command the
planter and merchant to do certain things from whence ex-
pense will accrue. The fees paid the officers of the customs
for entries and clearances, are also expenses charged upon the
Colonies, and consequently taxes. Confining the Colonies to
purchase commodities or manufactures in Great Britain, when
they could purchase them at a cheaper rate elsewhere, is tax-
ing them, in this way of reasoning; obliging the Colonies to
America's Position Criticised, 1769 235
sell their products in Great Britain, or to land them there
before they carry them to another market, is likewise a tax
upon them; for in all these cases, they are commanded to do
something from whence expense accrues.
All the taxes which are paid by the people in England, in-
asmuch as they serve to raise the price of labor or materials,
and thereby raise the price of manufactures, are all taxes
upon the people of the Colonies, who are obliged to purchase
those manufactures at our prices, and may not get them from
other countries.
It would be endless to trace this doctrine of taxes through
all its consequences. I have already gone far enough to
show that, upon Mr. Dickinson's principles, where they can-
not be imposed, there can be neither restraints upon trade,
nor exercise of sovereign authority; and that if Great Britain
does not possess the right of taxing the Colonies, she has no
right to exercise any jurisdiction over them; but that the
Colonies are, as Mr. Dickinson says they are, of themselves,
**a distinct community, or one political body of which each
Colony is a member, separated from the rest of the world,"
and especially from Great Britain. Yet, notwithstanding these
are clearly the consequences which must follow from his
premise, and that such are the consequences the Colonies
mean should follow from them, Mr. Dickinson, not caring to
discover the whole of their purpose so fully at present, in the
beginning of his second Letter, thus expresses himself: ** The
Parliament unquestionably possess a legal authority to regu-
late the trade of Great Britain and all her Colonies; such an
authority is essential to the relation between a Mother Country
and her Colonies, and necessary for the common good of all.
He who considers these Provinces as States distinct from the
British Empire, has very slender notions of justice, or of their
interests; we are but parts of a whole, and therefore there
must exist a power somewhere to preside and preserve the
connection in due order. This power is lodged in the Parlia-
ment." Again, in the same Letter, he says, "that we [the
Colonies] may be legally bound, by Act of Parliament, to pay
any general duties on these commodities, that is, paper and
236 The Administration of Dependencies
glass &c., relative to the regulation of trade, is granted.'*
How it comes to pass that these general duties do not occasion
an expense to the people who pay them, Mr. Dickinson has
not told us, or in what manner the Parliament of Great Britain
can exercise its legal authority to regulate the trade of the
Colonies, and preside over the whole, and preserve the con-
nection in due order, without a power of commanding the
Colonies to furnish a single article for such part of the national
forces, as it may, for these purposes, be thought fit to station
among them ; or what sort of regulations of trade Parliament
can devise, from the observance of which no expense will
accrue to the Colonies, are matters which he has not thought
proper to explain.
The authors of the pamphlet did not fail to point out
that the main and real objection to Dickinson's proposi-
tion that Parliament had power to regulate the trade of
the Colonies otherwise than by taxation, but had no
other power over the Colonies, was, that there was neces-
sarily implied in this that the powers of Parliament in the
Colonies and in Great Britain were not identical, and
that, the instant that was admitted, it was admitted that
the Colonies were not "of the same community with
England,** — that is, were dependent States, and no one
could tell what the power of Parliament over them was,
or whether it had any power over them at all. Their
words were :
Whatever impeaches the jurisdiction of Parliament over the
Colonies, however insignificant in itself, becomes of impor-
tance from its consequences; for if the authority of the Legis-
lative be not in one instance equally supreme over the Colonies
as it is over the people of England, then are not the Colonies
of the same community with the people of England. All dis-
tinctions destroy this union; and if it can be shown in any
particular to be dissolved, it must be so in all instances what-
ever. There is no alternative: either the Colonies are a part
of the community of Great Britain, or they are in a state of
America's Position Criticised, 1769 237
nature with respect to her, and in no case can be subject to
the jurisdiction of that legislative power which represents her
community, which is the British Parliament.
However faint any line of partition may be attempted to be
drawn between the people in England and the people in the
Colonies, it is not to be endured, if we would preserve the union
between them as one community, and the supremacy of Parlia-
ment over all as the representative of that community.
This, no doubt, was also intended as an answer to the
suggestion which the Stamp Act Congress itself had
made, in its Address to the House of Commons, when
it submitted to that House "whether there be not a ma-
terial distinction, in reason and sound policy at leasts be-
tween the necessary exercise of Parliamentary jurisdiction
in general Acts, and the common law and the regulations
of trade and commerce through the whole Empire, and
the exercise of that jurisdiction by imposing taxes in the
Colonies/* which was a definite suggestion that the
power of Parliament in the Realm was different in char-
acter and extent from its power in the Empire — different
in character because to be exercised only according to the
necessity for its interference, and different in extent be-
cause in the matter of taxation of the Colonies, at least.
It was wholly without power.
The alternative seemed to Knox and Grenville to be
that Great Britain and the Colonies either constituted a
Unitary State of which the British Parliament was the
Legislature and the British King the Executive, or that
Great Britain was a State foreign to the American Col-
onies, in which case they were ** in a state of nature "
with relation to it, and subject to its will as much as if
they were its mere conquests.
Nor was this position wholly unpraiseworthy. It was,
in one sense, a manifestation of the Imperial spirit with
which the English State has always been imbued — a spirit
238 The Administration of Dependencies
which has its basis in the sense of the personality of the
English State. The English idea always was that the Eng-
lish State might incorporate other States or communities
into itself, but that it could never confederate with other
States or be incorporated by another State into itself —
that any union with other States must result so that the
English State was the Central and Governing Power of
the whole organism. All communities not incorporated
into the English State so as to form a part of its person-
ality were considered to be ** in a state of nature " with
respect to it — that is, subject to its will, which, if not
yielded to, was to be executed by force. The Union
with Scotland in 1707 had been an incorporating merger
of the Scotch population with the English under such
terms that the population of Scotland was in fact
segregated and made dependent on the population of
England acting through the majority in Parliament, and
hence, practically, dependent on the State of England,
except that trade and intercourse between them was
free from imposition or tax.
It was only natural, therefore, that any Englishman
should look with suspicion upon any interpretation of the
Constitution of the British Empire according to which it
was to be regarded as a federal organism, in which Great
Britain — that is, England — was the Central Government,
and the American Colonies the Member-States. Such
an arrangement, no doubt, seemed to Englishmen to
place England in an equivocal position with relation to
the Colonies, since it would be their agent, delegate,
or representative, even though it had power to ad-
judicate upon the limits of its own jurisdiction.
Knox and Grenville did the Colonies a service in de-
molishing the position that the rights of their inhabitants
were the rights of Englishmen, and compelling them to
base their rights on general principles; and also in point-
ing out that the moment they claimed that the power of
America's Position Criticised, 1769 239
Parliament was different in the Colonies from what it was
in Great Britain, they declared themselves to be States
distinct from the State of Great Britain, and compelling
them to base their rights upon an interpretation of the
existing relationship between themselves as States, and
Great Britain.
The criticism contained in this pamphlet changed the
whole course of political thought in America. It had
been shown that the rights of the Colonies did not arise
from their ancestors having been Englishmen and were
not derived through any rights pertaining to individuals,
but arose out of the nature of things, which made it just
and necessary that political communities external to a
State and so far distant or distinct from it that a merger
of their populations with that of the State was impos-
sible, should be regarded and should regard themselves as
States, in a constitutional relationship of subordination
to the Imperial State, and as constituting, with it, a
Federal Empire. It forced the Colonies to base their
claims upon their rights as States, and to found their
claim of right to statehood to the extent of exclusive
self-taxation, upon their capacity for governing them-
selves as States and upon the existence of a moral sense
which would have made it repugnant to the popu-
lations of the Colonies to refuse to abide by the solemn
and impartial adjudications of Great Britain concerning
the limits of its jurisdiction, or to make use of the ser-
vices of Great Britain as the Central Government, having
the function of protection and co-ordination of all the
parts of the whole organism, without paying for these
services. In other words, in so far as the Colonies had
attempted to work out their rights from the rights of
their inhabitants, as individuals, the American position
(involving as it did the proposition that the British
Empire was a Unitary State) was demolished ; but in so
far as it was attempted to work out the rights of the
240 The Administration of Dependencies
inhabitants of the Colonies from the rights of the Colo-
nies, as Mennber-States of the British Empire, it was
uninjured, because impregnable, — the British Empire
being, in fact, a federal organism.
Had the resolutions of the Stamp Act Congress been
remodelled so as to meet this criticism, they would have
ready it would seem, somewhat as follows :
Resolved : That the American Colonies, as dependencies of
Great Britain, are Member-States and component parts of the
British Empire as a Federal Empire, of which Great Britain
is the Imperial State and Central Government, with power to
determine expertly and on just principles the limits of its own
jurisdiction. To such adjudications, whether made through
the King in Council or through the King, Lords, and Com-
mons in Parliament assembled, the Colonies owe the respect
and reverence which is properly and rightly due to tribunals
of so august a character.
That all the dependencies of Great Britain are justly en-
titled to the highest degree of member-statehood consistent
with their highest development and the highest development
of the whole Empire.
That it is inconsistent with the degree of member-statehood
to which the American Colonies are justly entitled and to
which they have been heretofore recognized as being entitled,
that they should not have exclusive control of their internal
and external taxation.
That the British Constitution is in force in the Colonies
except in so far as it is rendered inapplicable by local conditions
and circumstances, and that the local circumstances and con-
ditions in the Colonies are not such as to require the abolition,
to any extent, of the right of trial by jury.
No opportunity occurred for reviewing the resolutions
of the Stamp Act Congress until the Continental Congress
met in 1774. When that Congress met, it was evident
that the criticism of Knox and Grenville had had its
effect, and that the Colonies had profited by it.
CHAPTER XIV
REALM,— NOT EMPIRE, 1769-I774
THE work done by Knox and Grenville, in the
pamphlet, The Controversy between Great Britain
and the Colonies Reviewed^ was not wholly negative
and critical of the American propositions. A large part
of it was devoted to an attempt to prove affirmatively
that Great Britain and the Colonies constituted a single
Unitary State — that there was no British Empire, but
only a British Realm, of which the Colonies were inte-
gral parts.
Their first point was that the Parliament of Great
Britain was the Supreme Legislature of every person sub-
ject to the power of the State of Great Britain, on the
theory that every individual within that State, by be-
coming and remaining subject to its power, had tacitly
assented that Parliament should be the Supreme Legis-
lature. They said on this subject :
The subjects of Great Britain [in the Colonies] are not
without their representatives, though the members who com-
pose the House of Commons cannot be said to be distinctly
so. Neither are they bound by laws, nor is their money
taken from them without their own consent given by their
representatives. The King, Lords, and Commons are their
representatives; for to them it is that they have delegated
their individual rights over their lives, liberties, and property;
and so long as they approve of that form of government, and
continue under it, so long do they consent to whatever is done
by those they have intrusted with their rights.
x6
241
242 The Administration of Dependencies
" Laws they are not (says Hooker) which public approba-
tion hath not made so. But approbation not only they give,
who personally declare their assent by voice, sign, or act, but
also when others do it in their names, by right originally at
the least derived from them. And to be commanded we do
consent, when that society whereof we are part hath at
any time before consented, without revoking the same after
by the like universal agreement." And Mr. Locke, who fol-
lowed this learned investigator of the rights of mankind, in
his answer to Sir Robert Filmer, after having shown that the
origin of all power is from the people only; that every form
of government, whether a democracy, an oligarchy, an elec-
tive or hereditary monarchy, is nothing more than a trust
delegated by the society to the person or persons so appointed,
lays it down as a fundamental maxim in all Governments:
** That the Legislative is the joint power of every member of
the society, given up to that person or assembly which is legis-
lator; and that even the Executive, when vested in a single
person, is to be considered as the representative of the Com-
monwealth." And he then adds: ** Nobody doubts but an
express consent of any man entering into society makes him a
perfect member of that society, a subject of that Government
The difficulty is what ought to be looked upon as a tacit con-
sent; and to this I say, that every man that hath any posses-
sions or enjoyment of any part of the dominions of any
Government, doth thereby give his tacit consent, and is as far
forth obliged to obedience to the laws of that Government
during such enjoyment, as any one under it."
Upon this principle, the King and the two Houses of Parlia-
ment, are by our Constitution representatives of the Legisla-
tive, as the King alone is of the Executive power of the
Commonwealth; and upon this principle, every subject of
Great Britain, when he is taxed by Parliament, is taxed by
his own consent, for he is then taxed by consent of those
whom the society has impowered to act for the whole; and
every member of that community must therefore subscribe his
tacit consent to all such taxes as may be imposed, or other
legislative acts that may be done by those whom the society
Realm,-not Empire, 1 769-1 774 243
has appointed, as long as the form of government subsists.
This is the British Constitution; and if the British subjects
in America still continue to be part of our community, it fol-
lows that they also are represented by the British Legislative,
and equally bound by its laws.
The answer to this argument, so far as it is founded on
the theories of Hooker and Locke, is now easy, but it
was not in 1769, because political thought had not then
evolved to the point where the State as organized for the
purposes of war, was distinguished from the State as or-
ganized for the purposes of peace. In the State as or-
ganized for the purposes of war, only one Legislature and
Executive was possible, and, for the most effective ex-
ercise of the power of the State, it was necessary that all
power should be in the hands of one individual. For a
long time after the condition of peace came to be the
normal condition of the State, and the Sovereign became
a body of persons instead of a single individual, the
theory that the power of the supreme governing person
or body was indivisible, remained undisputed. It was
not until the American Revolution that it was perceived
that the will of the people was the supreme power, and
that all governmental power was an agency for them,
which they might divide in time of peace between two
or more governmental agents, so that each should ex-
ercise a supreme governmental agency within its sphere.
When Hooker and Locke wrote, the conception of di-
vided supreme governmental agency, on which was based
the claim of the Colonies to be Member-States of the
British Federal Empire, was unknown.
The next argument was that, because the rights of the
Colonies were originally derived from the Crown through
charters or commissions granted by it, which necessarily
implied an original submission to Parliament as the Su-
preme Legislature, the Colonies could not claim to be
244 The Administration of Dependencies
Member-States of a Federal Empire, because this would
imply a subsequent dispensation by the Crown, by which
the Colonies were in whole or in part released from the
supreme legislative authority of Parliament, which the
Crown had never purported to give and which it could
not have given, especially since the Act of Settlement of
1689, by which the King recognized that he had no power
to dispense with statutes. They said :
That the first inhabitants of the Colonies were part of the
British community, and bound to obey its legislative power in
all respects, as any other subjects at the time of the establish-
ment of those Colonies, will not be denied. How then has
that obedience been altered or released ? Those Colonies
were all created by charters or temporary authorities, from the
Executive Power of this community, except in the cases of
Jamaica, New York, and the late acquisition of Quebec, the
Ceded Islands, and the two Floridas, which were conquests
made by this community upon foreign powers, and such of
their subjects as remained were incorporated with us under
our laws and obedience. And it cannot, we have seen, be
pretended, that this obedience has been altered or released by
charters or authorities from the Executive Power; for, on the
contrary, the obedience to the laws of Great Britain, without
any restriction, is expressly reserved in every one of them,
and particularly the right of taxation is mentioned and reserved
to the Parliament of Great Britain by the Charter of Pennsyl-
vania, in which Colony Mr. Dickinson wrote his Farmer s
Letters.
This argument was difficult to answer in lyGg. The
character of the Colonies as Member-States of the Fed-
eral Empire arose neither from the act of King or Parlia-
ment, but in part from their being under the power of
the State of Great Britain, and in part from the nature
of things. The acts of the Crown derived their force not
merely from the fact that they were expressions of the
Realm,-not Empire, 1 769-1 774 245
will of the King or of the State of Great Britain, but also
and principally because they were adjudications made by
the King under expert advice, concerning the character
and extent of the rights of member-statehood which the
Colonies ought, on just principles, to have in the Federal
Empire. The question, therefore, was not of the right
of the Crown to release or discharge the Colbnies, in
whole or in part, from the power of Parliament, but of
the right of the Crown to adjudicate in what manner,
and to what extent, the Colonies were, in the nature of
things, released and discharged, in time of peace, from
the power of the State of Great Britain.
The authors also claimed that, in the case of the in-
habitants of the Colonies, there was a special reason why
they should be considered as an integral part of the popu-
lation of the British State, namely, that the proprietary
title to the soil itself, as well as the governmental au-
thority over the soil, had been originally vested in the
State of Great Britain by discovery, and that the inhabi-
tants had recognized this original and paramount title in
many ways, and particularly by paying to the Crown, i.e.^
to the State of Great Britain, rents, called quit-rents, re-
served by it, in lieu of the military or other service which
the occupant of the land would otherwise owe. The
argument on this point was as follows:
It is however pretended, that the lands in America lying
without the Realm, and appertaining to the King only, their
possessors cannot, from those circumstances, be subject to the
jurisdiction of Parliament, whose authority is necessarily con-
fined within the limits of the Realm. This plea, it is pre-
sumed, cannot be made by the inhabitants of such lands as
were conquered by the forces of the British State from foreign
powers, or ceded to Great Britain by treaty. Those conquests
or cessions are surely the dominions of the Crown of Great
Britain, not the private property of the King, which have
246 The Administration of Dependencies
thus been acquired by the efforts, the blood, and treasure of
the community; and indeed Mr. Dickinson puts these out of
the question in all that he says of the rights of the Colonies.
But does the discovery of countries by the subjects of the
British State, or the cession of them by the natives, make
those countries more particularly the private property of the
King, than would the conquest of them by force of arms from
a foreign Prince, or the acquisition of them by treaty ? The
difference only lies in the change of the term, the Crown for
that of the King; but that change has been made without
authority, either of reason or fact. The Kings of England
never had personally, nor ever claimed to have any property
in the lands in the Colonies. Those of them who carried
their claims of prerogative the highest, never pretended to
have any other title to those lands than what they derived
from their possession of the Crown of England, and they
granted them under that title to their present possessors, or
their ancestors ; for all grants of lands in the Colonies have
been made under the Great Seal of England, or by authority
derived under the Great Seal of England, which is the same
thing, from the first discovery of America to this day.
No man, at least no lawyer, will pretend, that the Great
Seal of England is the Private Seal of the King. It is the
Seal of the State, and distinguishes the acts of the State from
the private acts of the King; now, had the Kings of England
claimed to hold the lands in the Colonies as their own private
estate, they would have granted them of their own private
authority, and passed them under their own Private Seal, and
not under the Great Seal of England. The very nature of the
grant or charter is therefore an undeniable proof that the lands
in the Colonies are, and always have been, the possessions or
dominions of the Crown of England, and not the private per-
sonal property of the Kings of England. And it is an equally
undeniable consequence, that those who hold those lands
under such grants or charters, or by whatever title which
derives its authority originally or immediately under the Great
Seal of England, hold them of the Crown of England, and as
a part and parcel of the Realm ; for the Crown's estate must
Realm,-not Empire, 1 769-1 774 247
necessarily be within the Realm, since it is the estate or
dominions of the Crown (though not of the King) which make
the Realm.
In so far as this argument showed that the soil of the
Colonies belonged to the State of Great Britain as its
"property," it was unanswerable, but the conclusion
drawn from this premise was wholly wrong, as it is now
possible to see. To conclude from the premise that the
soil of the Colonies was the property of the State of Great
Britain, and, as such, subject to the unconditioned and
unlimited power of that State, that the people of the
Colonies were subject to the unconditioned and unlimited
power of that State, necessitated a minor premise to the
effect that the people on the soil of the Colonies were a
part of the soil.
The argument, put in the form of a syllogism, would
be:
The soil of the Colonies is the property of the State of Great
Britain, and, as such, subject to its unconditioned and un-
limited power.
The people on the soil of the Colonies are a part of the soil
of the Colonies.
Therefore the people of the Colonies are the property of the
State of Great Britain, and, as such, subject to its uncondi-
tioned and unlimited power.
The truth of this minor premise, under any circum-
stances, would now be denied, according to the practi-
cally unanimous sentiment of the civilized world, though
the principle contained in it is still, unfortunately, the
underlying basis of much political action. The difficulty
with the syllogism, however, reaches back to the major
premise, which is itself too broad, because not making a
difference in the kind and degree of property which a
State has in the soil of countries external to itself, accord-
ing as they are occupied by human beings or not. If the
248 The Administration of Dependencies
soil of a country external and belonging to a State is oc-
cupied by human beings, the region is its ''property/'
but it is its qualified property — that is, its property sub-
ject to a lien, incumbrance, or diminution of power, in
favor of the human beings occupying the soil, to the ex-
tent necessary for their highest development.
The modern view, stated in the form of a syllogism,
would be:
The soil of the Colonies is the property of Great Britain,
subject to its unconditioned and unlimited power when unoc-
cupied by human beings, but subject, when occupied by human
beings, to disposition according to the rules of the general
public law founded on reason and the nature of things, so as
to effect the highest development of the inhabitants both of
Great Britain and the Colonies. As an incident of this right
of disposition and to the extent necessary to effectuate this
purpose, Great Britain has the right to regulate the actions
of the inhabitants of the soil.
The soil of the Colonies is occupied by human beings.
Therefore the soil of the Colonies is subject to disposition
according to the rules of the general public law, founded on
reason and the nature of things, so as to effect the highest de-
velopment of the inhabitants both of Great Britain and the
Colonies; and, as incidental to this right of disposition, and
to the extent necessary to effectuate this purpose. Great
Britain has the right to regulate the actions of the inhabitants
of the soil.
The proposition that all the lands subject to the power
of a State were integral parts of the State in spite of its
wish or the wish of the inhabitants of the lands to the
contrary, and in spite of the separation of the lands from
the lands occupied by the State, was simply a conclusion
based on the proposition that a State is an aggregation
of lands and not a person occupying a certain amount of
space on the earth's surface. The whole syllogrism would
be:
Realm,-not Empire, 1 769-1 774 249
Great Britain is an aggregation of lands subject to a Central
Power.
The Colonies are lands subject to this Central Power.
Therefore the Colonies constitute an integral part of the
State of Great Britain.
In the light of modern knowledge the syllogism would
be framed thus :
Great Britain is a legal and political person, — that is, a cor-
poration and a state, — composed of all the individuals inhab-
iting certain lands, which may unite to itself or merge in itself
the individuals inhabiting other lands, provided such union or
merger is not impossible in the nature of things on account of
the separation of the lands by great distance, or on account
of the individuals inhabiting the lands being incapable of
fusion with the individuals composing the Corporation and
State of Great Britain.
The lands inhabited by the individuals composing the
Colonies are separated by a great distance from the lands in-
habited by the individuals composing the Corporation and
State of Great Britain.
Therefore the Colonies are not, and can never be, integral
parts of the Corporation and State of Great Britain.
The arguments of Knox and Grenville were of a kind
which could not be answered by reference to English pre-
cedents, because English history furnished no precedents.
In order to answer them, it was necessary to appeal to
what was then called "the law of nature and of nations,"
to use the title adopted by Pufendorf in 1672, or to "the
general public law," to use the title adopted by Blunt-
schli in 1880, which concerns itself with the rights and du-
ties of the State towards its inhabitants and towards its
dependent, associated, and federated States and their in-
habitants. In 1769, however, the thought on the subject
had not reached the point where this necessity was
evident. Lord Chatham and Dickinson were silent.
250 The Administration of Dependencies
Bernard's scheme for a Constitutional Convention of the
Empire was unpopular on both sides of the water, each
party fearing that the other would get the better of it in
a constitutional settlement. Fownall's scheme for Im-
perial Unity was equally unpopular, the British being un-
willing to convert the British Parliament into an Imperial
Parliament, and the Americans being unwilling to send
representatives to an Imperial Parliament because they
realized that the British Parliament would in fact control
it, and that they would thus have forever committed
themselves to the non-expert government of the British
House of Commons, which was the supreme govern-
mental agent within the British State.
From March 12, 1770, when the British troops were re-
moved from Boston, until the destruction of the tea in
Boston Harbor, on December 18, 1773, the situation be-
tween Great Britain and the Colonies remained un-
changed. The advantage in the debate was on the side
of Great Britain, since the burden was plainly upon the
Colonies to show that the power of Parliament in the
Colonies was different from its power in the Realm, and
the points of difference which they had suggested had
been pretty well demolished by the argument of Knox
and Grenville.
This condition of quiescence was largely due to the
conciliatory resolution adopted by the Ministry on May
I, 1769, which was given out by Lord Hillsborough, as
Secretary of State for the Colonies, in a circular letter to
the Colonial Governors, in which it was declared :
It is the unanimous opinion of the Lords present . . .
that no measures should be taken which can in any way
derogate from the legislative authority of Great Britain over
the Colonies, but that the Secretary of State, in his corre-
spondence and conversation, be permitted to state . . .
that it is by no means the intention of Administration, nor do
they think it expedient, or for the interest of Great Britain
Realm,-not Empire, 1 769-1 774 251
or of America, to propose or consent to the laying of any
further taxes upon America, for the purpose of raising a
revenue, and that it is at present their intention to propose,
in the next Session of Parliament, to take ofif the duties upon
paper, glass and colors imported into America, upon con-
sideration of such duties having been laid contrary to the true
principles of commerce.
This quiescence in the Colonies was, however, wholly
external. None of the causes of the original irritation
were removed except the most burdensome of the taxes.
There never was an instant when Great Britain did not
impose some taxes on the Colonies and when it did not
keep in existence in the Colonies a complete set of officials
and machinery for the collection of taxes. The taxation
was so light, however, that the organized resistance by
non-importation agreements came to an end in the fall of
1770, it having been found, as time passed, that they
were being violated by so many individuals and commu-
nities that the rest were obliged to yield.
Neither the Tariff Act of 1764 nor that of 1767 was
repealed, all that was done being to change the duties
levied under them, leaving in existence all the objection-
able provisions of those Acts, which appropriated the
proceeds of the taxes to defraying the charge of the
administration of justice and the support of civil govern-
ment in the Colonies, and which legalized writs of assist-
ance and permitted taxes to be recovered by actions in
Courts of Admiralty or in a general Court of Vice-Ad-
miralty for all America, in actions triable without a
jury.
As showing that the British Government was in ear-
nest about the establishment of a general Court of Vice-
Admiralty for all America, the action of the King in
commissioning the Governors of several of the Colonies
by the title of "Governor and Vice- Admiral" is signifi-
252 The Administration of Dependencies
cant. This made it possible for the Governors to sit as
Courts of Vice-Admiralty and to adjudicate upon cases
arising from alleged breaches of the customs laws with-
out a jury. The Act of 1767, providing for the establish-
ment of Commissioners of Customs in America, appointed
by the King also, continued in force during all this period.
These Commissioners, like the Commissioners of Customs
in Great Britain, were both inquisitors to ascertain
breaches of the customs laws, and prosecutors in customs
cases. By the establishment of this Board and the Court
of the Governor sitting as Vice-Admiral, there were pro-
vided instrumentalities of the most searching and rigoroos
kind for the collection of taxes.
During the period from 1770 until the outbreak of the
Revolution, taxes were imposed and collected, under the
Act of 1766, on syrups and molasses imported from any
place except the Island of Dominica, and on coffee or
pimento (allspice) imported from any British Colony, and
on tea, and the Navigation Act restricting the commerce
of the Colonies to Great Britain remained in force.
There were, however, many statutes in force in the
Colonies and actually put into execution there, during
the period from 1770 to 1774, which could not by any
stretch of the imagination be classed as taxing or trade-
regulating statutes or as statutes incidental to the exer-
cise of the power of taxation, or the power to regulate
trade, to which the Americans strenuously and properly
objected. The annual statutes providing for the quar-
tering of troops in America at the expense of the Colonies,
in public-houses, uninhabited dwellings, and bams, when
the barracks were insufficient, and for the furnishing of
supplies to the troops partly at the expense of the Colo-
nies, and for the impressing of wagons, etc., continued to
be passed, and the suspension of the sittings of the Gen-
eral Assembly of New York for two years, until it com-
plied with the statute, had made it evident that the
Realm,-not Empire, 1 769-1 774 253
British claim in this respect was intended to be enforced.
After the withdrawal of the troops from Boston on March
12, 1770, consequent upon the Boston Massacre, care was
taken to dispose the troops so that they should not come
into collision with the people, but this was the only con-
cession made. The Act of 1764, prohibiting the issue of
bills of credit by the Colonies, continued in force except
as modified in favor of New York in 1770 ; and the Act
of 1773, permitting the Colonies to make bills of credit a
legal tender for taxes and public dues, did not alter the
hostility of the Colonies to this kind of regulation. The
claim made by the British Government, in 1769, of a right
to have persons charged with treason in the Colonies tried
in England, under a statute of Henry VIII., was re-
newed by the Act of 1772, which permitted the King in
Council, by order, to require any person charged with de-
stroying any British dockyard, magazine, ships, ammuni-
tion, or stores, to be tried in England. The statute of
1765, relating to the Post Office, fixing the rates of post-
age on letters and packages between points wholly within
the Colonies, continued in force during all this period,
and was objected to by the Colonies as an interference
with their constitutional rights.
In order to make a successful defence against these
various acts of the British Government which the Ameri-
cans regarded as infringements of their constitutional
rights, it was plainly necessary for them to base their
argument upon some ground which would be equally
good against tax legislation and every other kind of legis-
lation which they regarded as objectionable. The propo-
sition that they were entitled to the same rights as if
they were Englishmen had been shown by the British
Government to be fallacious, by reducing the tariff on
the Americans so that they were taxed less by tariff du-
ties than Englishmen were. If the Americans were
entitled to the rights of Englishmen, they certainly could
254 The Administration of Dependencies
not complain if they were treated by the British Govern-
ment better than Englishmen. This was particularly the
case with tea. In 1767, by the Tariff Act, the tarifif on
tea was reduced below the tariff which Englishmen had
to pay, and by another Act of the same year, tea was al-
lowed, for five years from July 5, 1767, to pass through
Great Britain to America without any duty, so that from
July 5, 1767, until July 5, 1772, when this arrangement
expired, the Americans got their tea at a less price than
Englishmen. After the expiration of this arrangement,
the Americans still paid less than Englishmen, for though
they had to pay the tariff on importation both into
England and into America, Englishmen had to pay the
tariff on importation into England and an inland duty
exceeding the amount of the duty on importation into
America.
The tax on the tea imported into America in the fall
and winter of 1773, in the ships chartered by the East
India Company, was smaller than the Americans had been
paying on tea for more than a year, since under the Act
of 1773 ^^^ tariff on importations of tea into England
was repaid or released by the Government on the expor-
tation of the tea to America. In searching for the in-
tense antipathy manifested by the American Colonies to
this importation of tea, therefore, it is necessary not to
lay too much stress on the fact that it was taxed by
the British Government. It was quite as much because
the tea imported was equitably owned by the State of
Great Britain, so that the act of importation was the vir-
tual establishment of a monopoly in America, as because
it was taxed, that its importation was objectionable.
The facts out of which arose the equitable ownership
by the British Government of the tea attempted to be
imported were as follows: The East India Company,
which was the successor of companies which had traded
under royal charters since 1600, existed in 1773, not
Realm,-not Empire, 1 769-1 774 255
under a royal charter, but under a charter granted by Act
of Parliament originally enacted in 1709, and continued
by Acts of 1 7 12, 1730, and 1769, which conferred upon
the Company powers of government to some extent.
It was not a guild, but an ordinary joint-stock corpora-
tion, in which any one could be a member who should
purchase its shares. By Clive's victory at Plassy in 1757,
over the forces of the East Indians and French, the Com-
pany had obtained territorial rights in and near Calcutta
by possession growing out of conquest, which, in 1765,
were, by the recognition or grant of the Mogul Emperor,
converted into rights of fiscal and judicial administration
over a large region. By other victories over the French,
followed by the Treaty of Paris in 1763, the French
power in India ceased to exist. . In 1772, the affairs of
the Company, for several different reasons, became much
involved, its principal debts being one of ;^6oo,ooo to the
State of Great Britain for duties unpaid, and one of the
same amount to the Bank of England for money bor-
rowed; and, as it could not raise money from private
sources to tide it over the difficulty, it became necessary
for it either to go into bankruptcy or to be supported by
a loan from the State of ;^i,4CX),ooo. Great Britain
could not afford to let the Company fail, as the Company
was acting as its officer in the part of India over which it
had obtained governmental power. The native popula-
tion was acquainted with the Company and feared it, and
the Company was acquainted with the ways of the na-
tives. The situation required that the Company should
not be abolished, but that the enterprise should become
partly public and partly private, both in order that the
Government might have a hand in the management of
the Company so as to protect the interests of Great
Britain as creditor, and in order that it might cause to
be fulfilled the obligations of Great Britain, as the Im-
perial State, in the part of India which had, to some
256 The Administration of Dependencies
extent, become dependent upon Great Britain. Conse-
quently, by an Act of the year 1773, Great Britain loaned
;£ 1,400,000 to the Company, on the security of all the
tea then in the Company's English warehouses, amount-
ing to 17,000,000 pounds, and by the Regulating Act for
India of 1773, so called, entitled "An Act for Establish-
ing Certain Regulations for the Better Management of
the Affairs of the East India Company," provided for
governmental supervision of the affairs of the Company,
though the control of its affairs in the first instance was
left in the hands of the Board of Directors of the Com-
pany. The Regulating Act put an end to the practice of
electing the whole Board of Directors annually, and re-
quired that only one fourth of the Board of twenty-four
members should be elected each year, so as to prevent
radical changes of policy which might endanger both the
British power and the British loan to the Company, and
required monthly reports from the Board of Directors
to the head of the Treasury respecting all matters relat-
ing to the revenues of the Company, and to the Secretary
of State for the Southern Department respecting all mat-
ters relating to civil and military affairs and government
In addition to this, a Supreme Court of Judicature was
created to sit at Calcutta, for the part of India under the
jurisdiction of the East India Company, the judges of
which were to be appointed by the Crown.
Contemporaneously with the Loan Act and the Regu-
lating Act, and as a part of the same transaction. Parlia-
ment passed another Act, which permitted the duties
collectible on importation of tea into Great Britain to be
drawn back or released as respects teas taken from the
warehouses to be exported to America, doubled the de-
posit required of persons buying tea at auction from the
warehouses, making it £4 per chest instead of £2, — thus
discouraging private individuals from buying at auction
for exportation, — and provided as follows:
Realm,-not Empire, 1 769-1 774 257
That it shall and may be lawful for the Commissioners of
his Majesty's Treasury, or any three or more of them, upon
application made to them by the said United Company of
Merchants of England Trading to the East Indies, to grant a
license or licenses to the said United Company, to take out
of their warehouses, without the same having been put up to
sale, and to export to any of the British Plantations in Amer-
ica, or to any parts beyond the seas, such quantity or quantities
of tea as the said Commissioners of his Majesty's Treasury
or any three or more of them, or the High Treasurer for the
time being, shall think proper and expedient, without incur-
ring any penalty or forfeiture for so doing . . . and to
export such tea to any of the British Colonies or Plantations
in America, discharged from the payment of any duties or
customs whatsoever.
After the passage of this Act, the Ministry insisted
that the East India Company should send cargoes of tea
to America. The officers of the Company remonstrated,
on the ground that they could not safely do so unless the
Company paid the duty in advance and landed the goods
duty free, but the Ministry insisted that the consignees
in America should pay the duty, partly, no doubt, because
they feared that such a course as that suggested by the
Company would prejudice the claim of Great Britain to
tax the Colonies, and hence, as they believed, to legisla-
tive supremacy over them, but principally because it was
a part of their plan to make the collection of the duty
certain, by requiring tea to be imported in cargo lots which
could not possibly be smuggled. The tea in the English
warehouses equitably belonged to Great Britain, and, had
the cargoes of the tea-ships been landed in the Colonies
and sold there, all the proceeds, and not merely the three
pence per pound duty, would have gone into the British
Treasury. It was for the interest of Great Britain, under
such circumstances, that it should get as high a price as
«7
258 The Administration of Dependencies
possible for the tea, and that as many people in the Colo-
nies as possible should buy tea, since the more there was
realized, the sooner would it collect from the Company
what was owing. The situation was, therefore, the same
in effect as if the State had granted to the Company the
monopoly of supplying tea to the inhabitants of America,
and had pledged itself to foster the monopoly by every
direct and indirect means. As the consumption of tea
by the people of the Colonies would have pecuniarily
benefited Great Britain, consumers of tea would have
been regarded by the British Government as its friends
and non-consumers as its enemies, and the people of the
Colonies would have been, in effect, subject to sumptuary
regulations of the British Government, enforced through
the instrumentality of spies and informers. That it was
this monopoly feature which made the importation of the
tea particularly odious is shown by an extract from a
Philadelphia newspaper of January 3, 1774, quoted in the
Principles and Acts of the Revolution by Hezekiah Niles,
which read :
Upon the first advice of this measure, a general dissatisfac-
tion was expressed that, at the time when we were struggling
with this oppressive Act imposing a duty on tea, and an
agreement not to import tea while subject to duty, our fellow
subjects in England should form a measure so directly ten£Mg
to enforce that Act and again embroil us with our parent State.
When it was also considered that the proposed mode of dispoang
of the tea tended to a monopoly^ ever odious in a free country, a
universal disapprobation showed itself throughout the city.
The importation of the tea, under the circumstances,
was a definite attack upon the member-statehood of the
Colonies in the Federal Empire in four different ways:
first, it was an execution of a taxing statute passed by
the Central Government of Great Britain under a claim
Realm,-not Empire, 1 769-1 774 259
that, as the Central Government of the British Empire,
it had unconditional and unlimited power ; second, it was
an attempt to collect money from the Colonies to be ex-
pended for the maintenance of their Local Governments ;
third, it was an attempt to establish a monopoly of sup-
plying tea to the Colonies in favor of an English corpora-
tion ; and fourth, it was an attempt to subject the people
of the Colonies to indefinite sumptuary regulations, en-
forced through spies and informers.
The Act for closing the port of Boston and for depriv-
ing the Province of Massachusetts Bay of its House of
Representatives and elected Council, passed in the early
part of 1774, and the other acts and measures for the
coercion of the Colonies, were war measures, and are
hence of little consequence from a constitutional aspect,
except so far as they showed a determination, on the part
of the British Government, to enforce its policy of de-
priving the Colonies of their member-statehood in the
Federal Empire, and to convert them into mere integral
and unrepresented parts of a Unitary State.
The Act of 1774, by which the Province of Quebec, —
which, under the Proclamation of 1763, included only
what is now the continental part of the Dominion of
Canada, — was enlarged so as to include the whole of what
was afterwards known as the Northwest Territory, and
was given a government by a royal Governor and Coun-
cil, and by which the Roman Catholic religion was placed
under governmental protection, was regarded in the
Colonies as a direct attack upon their member-statehood
in so far as it deprived them of the benefit of free ex-
pansion into the Western region and the control of it for
the purposes of their own development, and as an indirect
attack, in so far as it almost surrounded them with a Gov-^
ernment directly dependent on the British Government,,
in which the people had no representation whatever.
Thus, in the spring of 1774, it was no longer open to
26o The Administration of Dependencies
doubt but that the British Ministry would convert the
British Empire into a British Realm unless the Colonies
could prevent it. Under these circumstances, the Con-
gress at Philadelphia, to devise measures for concerted
action, became a political necessity.
CHAPTER XV
THE FEDERAL EMPIRE DEFINED, 1774
DURING the quiescent period from 1770 to 1774,
the most noteworthy contribution to the thought
on the subject of the constitutional relationship
between Great Britain and the Colonies was a pamphlet
written by James Wilson of Philadelphia (who afterwards
became an Associate Justice of the Supreme Court of the
United States at its first formation), entitled Considera-
tions on tlie Nature and Extent of the Legislative Authority
of the British Parliament.
In this pamphlet, written when Wilson was twenty-
eight years of age and a student in the office of John
Dickinson, he took the ground that the King was the sole
representative of the State of Great Britain, for the ad-
ministration of its relations with the Colonies, thus deny-
ing any power whatever to Parliament in this respect.
After arguing that the liberties of the people of America
could not, in the nature of things, be derived from the
will of the people of England, but were natural rights,
and that they could not be derived from the adjudication
of the people of England, because they were interested
parties and an incompetent and partial tribunal, he con-
cluded, after an examination of the cases and of the
methods of administration of the Colonies theretofore
practiced, that the dependence of the Colonies was wholly
upon the King, and that, in the performance of his func-
tions, the King had legislative powers within a definite
sphere. These legislative powers Wilson derived from
261
262 The Administration of Dependencies
the principle of allegiance. As it is now apparent that the
whole doctrine of allegiance has nothing to do with the
question of constitutional relationship between political
communities in the time of peace, and has its sole sig-
nificance only as bearing on the relations between the
State and its inhabitants arising out of war, present or
prospective, it is unnecessary to consider what he said on
this subject. The closing words of the essay, on the sub-
ject of the relationship of the King to the Colonies, were
as follows :
Now we have explained the dependence of the Americans.
They are the subjects of the King of Great Britain. They owe
him allegiance. They have a right to the benefits which arise
from preserving that allegiance inviolate. They are liable to
the punishments which await those who break it. This is a
dependence, which they have always boasted of. The prin-
ciples of loyalty are deeply rooted in their hearts ; and there
they will grow and bring forth fruit, while a drop of vital blood
remains to nourish them. Their history is not stained with
rebellious and treasonable machinations; an inviolable attach-
ment to their Sovereign, and the warmest zeal for his glory,
shine in every page.
From this dependence, abstracted from every other source,
arises a strict connection between the inhabitants of Great
Britain and those of America. They are fellow- subjects; they
are under allegiance to the same Prince; and this union of
allegiance naturally produces a union of hearts. It is also
productive of a union of measures through the whole British
dominions. To the King is intrusted the direction and man-
agement of the great machine of government. He therefore
is fittest to adjust the different wheels, and to regulate their
motions in such a manner as to co-operate in the same general
designs. He makes war: he concludes peace: he forms alli-
ances: he regulates domestic trade by his prerogative, and di-
rects foreign commerce by his treaties with those nations, with
whom it is carried on. He names the officers of government;
The Federal Empire Defined, 1774 263
so that he can check every jarring movement in the adminis-
tration. He has a negative on the different Legislatures
throughout his dominions, so that he can prevent any repug-
nancy in their different laws.
The connection and harmony between Great Britain and us,
which it is her interest and ours mutually to cultivate, and on
which her prosperity, as well as ours, so materially depends,
will be better preserved by the operation of the legal preroga-
tives of the Crown, than by the exertion of an unlimited
authority by Parliament.
To Wilson's essay there was appended, in the printed
pamphlets, the following note, which, though not signed,
was evidently written by Dickinson, since, in his next
published pamphlet, to which reference will hereafter be
made, Dickinson showed a decided tendency toward Wil-
son's view in the modified form suggested by this note,
and since Wilson's essay was published almost contem-
poraneously with Dickinson's pamphlet in which these
views were expressed :
After considering, with all the attention of which I am
capable, the foregoing opinion — that all the different members
of the British Empire are distinct States, independent of each
other, but connected together under the same Sovereign in
right of the same Crown — I discover only one objection that
can be offered against it. But this objection will, by many, be
deemed a fatal one. ** How," it will be urged, " can the trade
of the British Empire be carried on, without some power, ex-
tending over the whole, to regulate it ? The legislative au-
thority of each part, according to your doctrine, is confined
within the local bounds of that part: how, then, can so many
interfering interests and claims, as must necessarily meet and
contend in the commerce of the whole, be decided and
adjusted? "
Dickinson's criticism, it will be perceived, amounted
to his asking the question : Granted that the functions of
264 The Administration of Dependencies
Great Britain, as the Imperial State, toward the Colonies,
are such as can be performed properly only by the expert
branch of the British Government, how can these func-
tions be performed except through the medium of legis-
lation, and how can the King legislate?
To this Wilson replied in a note which, in the pam-
phlets, was printed immediately below Dickinson's. This
note was as follows :
Permit me to answer these questions by proposing some
others in my turn. How has the trade of Europe — how has
the trade of the whole globe, been carried on ? Have those
widely extended plans been formed by one superintending
power ? Have they been carried into execution by one super-
intending power ? Have they been formed — have they been
carried into execution, with less conformity to the rules of jus-
tice and equality, than if they had been under the direction
of one superintending power ?
It has been the opinion of some politicians, of no inferior
note, that all regulations of trade are useless; that the greatest
part of them are hurtful; and that the stream of commerce
never flows with so much beauty and advantage, as when it is
not diverted from its natural channels. Whether this opinion
is well founded or not, let others determine. Thus much may
certainly be said, that commerce is not so properly the object
of laws, as of treaties and compacts. In this manner, it has
been always directed among the several nations of Europe.
But if the commerce of the British Empire must be regulated
by a general superintending power, capable of exerting its in-
fluence over every part of it, why may not this power be in-
trusted to the King, as a part of the royal prerogative ? By
making treaties, which it is his prerogative to make, he directs
the trade of Great Britain with the other States of Europe : and
his treaties with those States have, when considered with re-
gard to his subjects, all the binding force of laws upon them,
(i. Bl. Com. 252.) Where is the absurdity in supposing him
vested with the same right to regulate the commerce of the
distinct parts of his dominions with one another, which he has
The Federal Empire Defined, 1774 265
to regulate their commerce with foreign States ? If the history
of the British Constitution, relating to this subject, be carefully
traced, I apprehend we shall discover, that a prerogative in
the Crown, to regulate trade, is perfectly consistent with the
principles of law. We find many authorities that the King
cannot lay impositions on traffic; and that he cannot restrain
it altogether y nor confine it to monopolists; but none of the
authorities, that I have had an opportunity of consulting, go
any farther. Indeed many of them seem to imply a power in
the Crown to regulate trade, where that power is exerted for
the great end of all prerogative — the public good.
If the power of regulating trade be, as I am apt to believe
it to be, vested, by the principles of the Constitution, in the
Crown, this good effect will flow from the doctrine; a perpet-
ual distinction will be kept up between that power, and a
power of laying impositions on trade. The prerogative will
extend to the former; it can, under no pretence, extend to the
latter: as it is given, so it is limited, by the law.
Dickinson's criticism thus forced Wilson finally to take
the position that the King of Great Britain had, and of
right ought to have, under a proper constitution of the
British Federal Empire, the right to legislate to the ex-
tent necessary to enable the State of Great Britain to ful-
fil its functions as the Imperial State. This conclusion
was strictly logical, so long as Parliament persisted in its
claim that its power in the Empire, as well as in the
Realm, was unconditioned and unlimited. As that claim
could not be allowed by the Colonies, they necessarily
had to find an Imperial Legislature somewhere in the
whole political organism composed of Great Britain and
the Colonies, which could exercise powers of legislation
to the extent necessary to effectuate the dispositions re-
garding the Colonies made by the King in Council, or to
admit that they were seeking independence. Such an
Imperial Legislature Wilson found in the King in
Council.
266 The Administration of Dependencies
Such a doctrine was dangerous, in that it tended to
weaken the hold which the people of England had over
the King, under the Act of Settlement of 1689, by ad-
mitting him to have legislative power otherwise than in
subordination to Parliament, and because it tended to lead
to the belief that the Colonies stood in that slight and
shadowy relation toward Great Britain which is now
known as "personal union," which exists when two inde-
pendent States have the same person as Chief Executive,
but are otherwise entirely distinct from one another.
Those to whom Wilson showed his essay, when it was
first written, evidently thought it dangerous on these ac-
counts. Wilson stated, in the "Advertisement," printed
at the beginning of the pamphlet, that the essay was
originally written "during the late non-importation agree-
ment; but that agreement being dissolved before the
sheets were ready for the press, it was judged unseason-
able to publish them." The non-importation agreement
in Philadelphia was dissolved in September, 1770. It
was evidently considered wiser by Dickinson, Wilson's
preceptor, that, just at the time that matters were be-
coming quiescent, a pamphlet should not be published in
America which so greatly aggrandized the King at the
expense of Parliament, and which might so easily be mis-
construed into a claim of entire legislative independence
on the part of the Colonies.
One of the most important pamphlets brought out dur-
ing the discussion in the year 1774, which arose on ac-
count of the retaliatory acts of the British Government
after the destruction of the tea in Boston Harbor, was
Governor Bernard's Select Letters on the Trade and Gov-
ernmejit of America, from which extracts have already
been quoted. From the preface of this pamphlet, it ap-
pears that his opinions expressed in 1765 had undergone
some modification, and that, in 1774, he was inclining to
the opinion that, if the Americans were admitted to be
The Federal Empire Defined, 1774 267
heard in Parliament, it ought to be as parties or witnesses
summoned in order that Parliament might inform itself
of the circumstances before making an adjudication and
disposition concerning the rights of the respective Col-
onies, and not as participants in a legislative or contract-
ual act. Bernard's final conclusion seems to have been
that it was the business of Parliament to make ** settle-
ments of the Governments of the Colonies," according
to which the governmental power should be divided, in
distinct spheres, between Great Britain and the Colonies.
In this preface he said :
At the time of the passage of the Act of Parliament for
raising money in America by a stamp duty, there was no fixed
idea of the relation between Great Britain and America; not
one of the Governments there had, what not one of them
should have been without, a Parliamentary Constitution.
And therefore it is not to be wondered at that, when they
were called upon to pay money to the order of Parliament,
they should answer — ** We know not what is the relation be-
tween you and us, that authorizes you to raise money from us
or our lands."
And, indeed, it may afford cause of wonder that, in the
course of one hundred and fifty years, (for so many it is, at
least, since Governments were first constituted in America),
there never has been a Parliamentary settlement of the Ameri-
can Governments, or any adjustment of the nature of the sub-
jection, and the mode of subordination, that was due to, or
expected from the dependent Governments to the Imperial
State. Before the Revolution [of 1688], this neglect is to be
accounted for; the rights of Government were then not well
understood in England, and in America they were wholly
misconceived. The lands acquired by the English there,
and the government of them, were supposed to be the abso-
lute property of the King, and were disposed of accordingly.
The Parliament was scarce allowed to have anything to do
with them, and interfered very little in their government.
268 The Administration of Dependencies
But at the Revolution [of 1688], when the rights of Govern-
ment were well understood and formally settled; when the
power of Parliament was greatly enlarged, and allowed to ex-
tend over all the dependencies of the Crown of Great Britain,
as well as its own Kingdom ; at that time, and ever since, it has
been an unfortunate omission of policy that the constitutions
of the Governments of America were not settled in Parliament,
and the rights of the Imperial State over them acknowledged,
with such regulations and limitations as the several natures of
them, upon constitutional principles and good policy, should
require; that we might not, at this time of day, when the Em-
pire is so greatly enlarged, and is still increasing, be at a loss
for principles upon which the connection of its subordinate
Governments with the Imperial State may be best preserved,
and the union of the whole maintained and continued.
But no care has been taken of this important business; and
America has been left to that miserable servitude where law is
uncertain and unknown. Instead of a certain constitutional
law, adapted to the nature of the Governments established by
the dependent or subordinate States, America has been
hitherto governed by temporary expedients, which have some-
times been allowed to have the force of laws, and have
sometimes been refused it. In this state of things, it was im-
possible but the time would come when the authority of Great
Britain over America would be brought into question.
Bernard had nearly thought out the Federal Empire.
The Imperial State, according to him, was, through its
Parliament, to "settle" the ** constitutions of the Amer-
ican Governments," and to abide by such "settlements.*'
Such ** settlements '* could not fail to partake of the
nature of adjudications. Such Acts of Parliament were
not acts of legislation in the ordinary sense ; they were
acts of disposition or adjudication, and of legislation to
effectuate the adjudication.
Edmund Burke, in his speech in opposition to Ameri-
can taxation, delivered in Parliament on April 19, 1774,
The Federal Empire Defined, 1774 269
distinguished between the unconditioned and unlimited
power of Parliament within the Realm of Great Britain,
and its power as the representative of Great Britain, as
the Imperial State, so conditioned and limited as to be
only a power of "provident and beneficent superintend- ^
ence *' of the Colonies. In that speech he said :
What is to become of the Declaratory Act asserting the
entireness of British legislative authority, if we abandon the
practice of taxation ?
For my part, I look upon the rights stated in that Act,
exactly in the manner in which I viewed them on its very first
proposition, and which I have often taken the liberty, with
great humility, to lay before you. I look, I say, on the Im-
perial rights of Great Britain, and the privileges which the
colonists ought to enjoy under these rights, to be just the most
reconcilable things in the world. The Parliament of Great
Britain sits at the head of her extensive Empire in two capaci-
ties: one as the Local Legislature of this Island, providing for
all things at home, immediately, and by no other instrument
than the Executive power. The other, and I think her nobler
capacity, is what I call her Imperial character, in which, as
from the throne of heaven, she superintends all the several
inferior Legislatures and guides and controls them all without
annihilating any. . . . It is necessary to coerce the negli-
gent, to restrain the violent, and to aid the weak and deficient,
by the overruling plenitude of her power. She is never to
intrude into the place of others, whilst they are equal to the
common duties of their institution. But in order to enable
Parliament to answer all these duties of provident and bene-
ficent superintendence, her powers must be boundless. . . .
Such, Sir, is ray idea of the Constitution of the British
Empire, as distinguished from the Constitution of Britain.
It has been noticed that Dulany, in 1765, first used the
word ** superintendence " to describe the power of the Im-
perial State, and that he applied it to the power over the
American Colonies exercised by the British Parliament,
2 70 The Administration of Dependencies
as the representative of Great Britain ; and that Wilson,
in his note in answer to Dickinson's criticism, had used
the expression ** superintending power" to describe the
power of Great Britain, as the Imperial State, exerdsed
by the King in Council. The distinction between the
** superintending power" of Parliament acting as agent
for Great Britain as the Imperial State, and the ** legis-
lative power " of Parliament acting as the "Local L^is-
lature " of Great Britain, was, therefore, American, not
British.
Burke, however, added to the previous thoughts by
pointing out that the power of the Imperial State was a
conditioned, as distinguished from a limited power, when
he said: "In order to enable Parliament to answer all
these duties of provident and beneficent superintend-
ence, her powers must be boundless." A power of
"provident and beneficent superintendence" is neces-
sarily a power without specific limits predetermined by
an external human power, but it is conditioned upon the
holder of the power adjudicating the limits of his own
powers according to his own opinion of the necessity for
his interference in each particular case as it arises, in
order that the whole organism under his superintend-
ence may most perfectly and beneficently perform its
functions.
On July 1 8, 1774, the inhabitants of Fairfax County,
Virginia, at a meeting presided over by George Wash-
ington, as chairman, adopted a series of resolutions,
prepared by George Mason, which showed that in Vir-
ginia the conception of the British Empire as a federal
organism was beginning to manifest itself. In these reso-
lutions it was declared :
That the Colony and Dominion of Virginia cannot be con-
sidered as a conquered country; and if it was, that the present
inhabitants are the descendants, not of the conquered, but of
The Federal Empire Defined, 1774 271
the conquerors. That the same was settled at the national
expense of England, but at the private expense of the adven-
turers, our ancestors, by solemn compact with, and under the
auspices and protection of the British Crown ; upon which we
are in every way as dependent as the people of Great Britain,
and in the same manner subject to all his Majesty*s just,
legal and constitutional prerogatives.
As the inhabitants of the American Colonies are not, and
from their situation cannot be represented in the British Par-
liament, that the legislative power here can of right be exer-
cised only by our own Provincial Assemblies or Parliaments,
subject to the assent or negative of the British Crown^ to be
declared within some proper limited time. But as it was thought
just and reasonable that the people of Great Britain should
reap advantages from these Colonies adequate to the protec-
tion they afforded them, the British Parliament have claimed
and exercised the power of regulating our trade and commerce,
so as to restrain our importing from foreign countries such
articles as they could furnish us with, of their own growth and
manufacture, or exporting to foreign countries such articles
and portions of our produce, as Great Britain stood in need
of, for her own consumption or manufactures. Such a power y
directed with wisdom and moderation^ seems necessary for the
general good of that great body politic j of which we are a part ;
although in some degree repugnant to the principles of the Consti-
tution. Under this idea our ancestors submitted to it; the
experience of more than a century; during the government of
his Majesty's royal predecessors, has proved its utility, and
the reciprocal benefits flowing from it produced mutual un-
interrupted harmony and good will, between the inhabitants
of Great Britain and her Colonies, who, during that long
period, always considered themselves as one and the same
people ; and though such a power is capable of abuse, and in
some instances has been stretched beyond the original design
and institution, yet to avoid strife and contention with our
fellow-subjects, and strongly impressed with the experience
of mutual benefits, we always cheerfully acquiesced in it,
272 The Administration of Dependencies
while the entire regulation of our internal policy, and giving
and granting our own money, were preserved to our own
Provincial Legislatures.
That it is the duty of these Colonies, on all emergencies, to
contribute, in proportion to their abilities, situation, and cir-
cumstances, to the necessary charge of supporting and defend-
ing the British Empire, of which they are a part.
Washington, in giving his assent and approbation to
resolutions which, while not going deeply into the details
of the exercise of the power of Imperial State, went to
the very bottom of the first and vital question. What was
the character and extent of the power ? — showed his
characteristic wisdom and good sense. No one was more
ardently devoted than he to the connection with Great
Britain. With him, as with the vast body of thinking
people of America, the sole question was, What kind and
degree of power ought Great Britain, as the Imperial
State of the British Empire, to exercise over the
Colonies under a just Constitution of the Empire? His
answer was: **A power directed with wisdom and
moderation, such as is necessary for the general good of
that great body politic of which we are a part/' — that is,
a power exercised expertly and only to the extent neces-
sary in each particular case. Such a power is exactly
that which an Imperial State exercises in a Federal
Empire.
The most important contribution, however, which was
made by any one during the whole discussion preceding
the Revolution, concerning the constitutional relationship
between Great Britain and the Colonies, was that made
by Dickinson, in July, 1774, in his pamphlet entitled,
A New Essay on the Constitutional Power of Great Britain
over the Colonies in America.
The New Essay was originally intended to be a part of
the Instructions which the Pennsylvania Legislature were
The Federal Empire Defined, 1774 273
to give to the delegates to the Continental Congress.
The Instructions were recommended by the Committee
of Safety of Pennsylvania, on the report of a sub-
committee of which Dickinson was chairman. It was
thought best by the Committee of Safety that the
" Essay" should be separated from the Instructions,
but they ordered it published and voted Dickinson their
thanks for his labors. Wilson was a member of the
Committee of Safety and united in this action.
In the Instructions it was said :
We acknowledge the prerogatives of the Sovereign, among
which are included the great powers of making peace and war,
treaties, leagues and alliances binding us — of appointing all
officers, except in cases where other provision is made by
grants from the Crown, or laws approved by the Crown — of
confirming or annulling every act of our Assembly within the
allowed time — and of hearing and determining finally, in
Council, appeals from our courts of justice. " The preroga-
tives are limited," as a learned judge observes, — ** by bounds
so certain and notorious, that it is impossible to exceed them,
without the consent of the people on the one hand, or without,
on the other, a violation of that original contract, which, in
all States impliedly, and in ours most expressly, subsists be-
tween the Prince and the subject. For these prerogatives are
vested in the Crown for the support of. society, and do not
intrench any farther on our natural liberties, than is expedi-
ent for the maintenance of our civil."
Elaborating this thought in the New Essay y and treat-
ing the powers of the Crown as the powers of the State
of Great Britain, Dickinson said :
The Colonies have no other head than the King of England.
The person who by the laws of that Realm is King of that
Realm, is our King. . . .
When it is considered that the King, as King of England,
x8
274 The Administration of Dependencies
has a power in making laws — the power of executing them —
of finally determining on appeals — of calling upon* us for
supplies in times of war, or any emergency — that every branch
of the prerogative binds us, as the subjects are bound thereby
in England — and that all our intercourse with foreigners is
regulated by Parliament, — colonists may "surely" be ac-
knowledged to speak with truth, and precision, in answer to the
*' elegantly ** expressed question — ** what King// is,'* &c., by
saying that ** his most gracious Majesty, George the Third,"
is the King of England, and therefore, "the King/* they
profess themselves to be ** loyal subjects of."
We are aware of the objection, that, " if the King of Eng-
land is therefore King of the Colonies, they are subject to the
general legislative authority of that Kingdom. * * The premises
by no means warrant this conclusion. It is built on a mere
supposition, that the Colonies are thereby acknowledged to be
within the Realm, and on an incantation expected to be
wrought by some magic force in those words.
To be subordinately connected with England, the Colonies
have contracted. To be subject to the general legislative
authority of that Kingdom, they never contracted. Such
a power as may be necessary to preserve this connection she
has.
The authority of the Sovereign, and the authority of con-
trolling our intercourse with foreign nations, form that power.
Such a power leaves the Colonies free. But a general legis-
lative power, is not a power to preserve that connection, but
to distress and enslave them. If the first power cannot sub-
sist, without the last, she has no right even to the first, — the
Colonies were deceived in their contract — and the power must
be unjust and illegal ; for God has given to them a better right
to preserve their liberty, than to her to destroy it. In other
words, supposing, King, Lords and Commons acting in Parlia-
ment, constitute a Sovereignty over the Colonies, is that
Sovereignty constitutionally absolute or limited ? That States
without freedom, should by principle grow out of a free State,
is as impossible, as that sparrows should be produced from the
eggs of an eagle. The Sovereignty over the Colonies, must be
The Federal Empire Defined, 1774 275
limited. ... To argue on this subject from other in-
stances of Parliamentary power, is shifting the ground.
The connection of the Colonies with England is a point of
an unprecedented and delicate nature. It can be compared
to no other case; and to receive a just determination, it must
be considered with reference to its own peculiar circumstances.
The common law extends to colonies; yet Mr. Justice Black-
stone says: ** Such parts of the law as are neither neces-
sary or convenient for them, as the jurisdiction of the spiritual
courts, etc., are therefore not in force." If even the common
law in force within the Realm of England when the colonists
quitted it, is thus abridged by the peculiar circumstances of
colonies, at least equally just and constitutional is it, that
the power of making new laws within the Realm of England
should be abridged with respect to colonies, by those peculiar
circumstances.
As to the power of regulating our trade, our opinion is, that
it is legally vested in Parliament, not as a Supreme Legislature
over these Colonies, but as the Supreme Legislature and full
representative of the parent State and the only judge between
her and her children in commercial interests, which the nature
of the cas^, in the progress of their growth, admitted. It has
been urged, with great vehemence against us, and seems to be
thought their fort by our adversaries, ** that a power of regular
tion is a power of legislation, and a power of legislation, if
constitutional, must be universal and supreme in the utmost
sense of the words." It is therefore concluded, that the colo-
nists, by acknowledging the power of regulation, have acknowl-
edged every other power. On this objection we observe, that
according to a maxim of law, " it is deceitful and dangerous
to deal in general propositions."
It seems from many authorities, as if almost the whole power
of regulating the trade of England was originally vested in the
Crown. One restriction appears to have been, that no duty
could be imposed without the consent of Parliament. Trade
was little regarded by our warlike ancestors. As commerce
became of more importance, and duties and severities were
judged necessary additions to its first simple state, Parliament
276 The Administration of Dependencies
more and more interfered. The Constitution was always free,
but not always exactly in the same manner. By the feudal
law, all navigable rivers and havens were computed among
the regalia^ and were subject to the Sovereign of the State.
And in England it has always been held, that the King is
lord of the whole shore, and particularly is guardian of the
ports and havens, which are the inlets and gates of the Realm;
and therefore, so early as the reign of King John, we find
ships seized by the King's officers, for putting in at a place
that was not a legal port. These legal ports were undoubtedly
at first assigned by the Crown; since to each of them a court of
portmote is incident, the jurisdiction of which must flow from
the royal authority. The erection of beacons, lighthouses^
and sea-marks is also a branch of the royal prerogative. The
powers of establishing public marts, regulating of weights and
measures, and the giving authority to, or making current,
money, the medium of commerce, belong to the Crown. By
making peace or war, leagues and treaties, the King may open
or stop trade as he pleases. The admiralty courts are grounded
on the necessity of supporting a jurisdiction so extensive,
though opposite to the usual doctrines of the common law.
The laws of Oleron were made by Richard the First, and ire
still used in those courts. In the ** Mare Clausum " are several
regulations made by Kings. Time forbids a more exact inquiry
into this point: but such it is apprehended, will on inquiry be
found to have been the power of the Crown, that our argument
may gain, but cannot lose. We will proceed on a con-
cession that the power of regulating trade is vested in
Parliament.
A power of regulating our trade involves not in it the idea
of a Supreme Legislature over us. The first is a power of a pre-
serving, " protecting " nature. The last, as applied to Amer-
ica, is such a power as Mr. Justice Blackstone describes in
these words, ' ' whose enormous weight spreads horror and
destruction on all inferior movements." . .
The power of regulation was the only band that could have
held us together; formed on one of those "original contracts,"
— which only can be a foundation of just authority. Without
The Federal Empire Defined, 1774 277
such a band, our general commerce with foreign nations might
have been injurious and destructive to her. Reason and duty
reject such a license. Thus our duty resembles that of children
to a parent. The parent has a power over them : but they
have rights, which the parent cannot take away. . . .
It seems as if the power of regulation might not inaptly be
compared to the prerogative of making peace, war, treaties,
or alliances, whereby "the whole nation are bound, against
their consent **: and yet the prerogative by no means implies
a Supreme Legislature. The language held in " the Commen-
taries** on this point is very remarkable: "With regard to
foreign concerns, the King is the delegate or representative of
the people; and in him, as in a center, all the rays of his
people are united; and the sovereign power quoad hoc is vested
in his person.'* Will any Englishman say these expressions
are descriptive of the King's authority within the Realm ?
Is the sovereign power within that vested in his person ? He
is styled Sovereign indeed. ** His Realm is declared by many
Acts of Parliament an Empire, and his crown Imperial. * ' But
do these splendid appellations, the highest known in Europe,
signify that sovereign power is vested in his person within the
Realm ? We have a full answer in the Commentaries. ** The
meaning of the Legislature, when it uses these terms * Empire *
and * Imperial,* and applies them to the Realm and Crown of
England, is only to assert, that our King is equally sovereign
and independent within these his dominions; and owes no
kind of subjection to any potentate upon earth."
Thus we maintain that with regard to foreign affairs, the par-
ent original State is the delegate or representative of the entire
dominions: the sovereign power quoad hoc is vested in her.
Her acts under this power irrevocably bind the whole nation.
But yet this power by no means implies a Supreme Legislature.
The exercise of this power by statutes was absolutely nec-
essary: because it was, and could only be lodged, as the laws
of the parent State stand, in the Supreme Legislature of that
State, consisting of King, Lords, and Commons; and statutes
are the modes by which these united sentiments and resolu-
tions are expressed.
278 The Administration of Dependencies
The power of the Imperial State, therefore, according
to Dickinson's final opinion, was:
A power of enforcing the observance of '* the common
law " in the Colonies, "abridged by the peculiar circum-
stances ** of the Colonies;
A power exercised by the Imperial State as **thc only
judge" between itself and its dependencies *' which the
nature of the case admitted " ;
A power, therefore, which, if exercised at all by Parlia-
ment, consisting of King, Lords, and Commons, was
exercised only in substitution for the King, so that Par-
liament could not exceed the power exercised by the
King by virtue of his " prerogative " — that is, by virtue
of his constitutional right. As the reason why the British
Constitution vested in the Crown the powers enumerated
by Dickinson was, plainly, so that they might be exer-
cised expertly, and not submitted to the decision of a
large non-expert body, the proposition that the powers
of Parliament over the dependencies were measured by
the powers of the Crown, was essentially a proposition
that the dependencies were entitled to a central expert
government and administration ;
A power exercised by the whole Central Government
of the Imperial State, and ultimately by statutes enacted
by Parliament — the Imperial State being "the delegate
or representative of the entire dominions," and **the
exercise of this power by statutes" being "absolutely
necessary'*;
A power " such as may be necessary to preserve the
connection** between the Imperial State and its depen-
dencies ;
A power, therefore, by which the State of Great Britain
was, under some circumstances, authorized to bind the in-
dividual inhabitants of the Colonies without their individ-
ual consent expressed by natural persons elected by them
as their representatives, because the Colonies, as political
The Federal Empire Defined, 1774 279
persons, were so related to the State of Great Britain, that
that State, as a political person, was their delegate and
representative for managing the common concerns of the
great political organism composed of the State of Great
Britain and the Colonies, constituting the British Empire,
under a condition that the power should be exercised
through some expert instrumentality, and that in extent
and sphere it should be limited by the necessity growing
out of the common interests of the whole organism.
By the statement of Dickinson's that Great Britain was
*'the delegate or representative of the entire dominions,"
in whom **the sovereign power" for the purposes of the
agency was ** vested," — whose **acts under this power
irrevocably bind the whole nation," — whose power was,
nevertheless, a power to "judge" between itself and the
Colonies in those matters in respect to which its interests
necessarily conflicted with those of the Colonies, because
it was "the only judge which the nature of the case
admitted," the Federal Empire may be said to have
emerged. The instant it was declared that Great Britain,
as a State, was "the delegate or representative" of the
Colonies, the Colonies were declared to be Member-States
of the British Federal Empire.
tfj«: o^i^r^its: vi'asr imanrmoiifr
^tit bval<tt atfC tiar. tiwrv wcrt ir aTrmlfMng"' ■'•
liiiu*^^*' uitivf witi. tut boatt: of GmosEt Sixtan:
uuwf'KXit:i. "Ji«i»A tr Cumpan of Xfiiiini.
ti;#t Cii4i,'tixf:x*sr vT ti*t Vtiiur*. howEvcr.
ciocc ^iti^^i'^t vf vjiniiur.. liiskhaa
cvffi^ 41 o»:«^«t*.t uitlil it tmuuic ^ipear
^->v««i;ir«=«i w»^nc takt : tiut. residing. ib iic xiid. ic 2wfr
<i«5lj^iii*i, iiit i^f«rt i^uuniwD oQuiiticHB gawE linmBxn»
iiilliM:ii«>; itt, if iit iiiaci ti«:ti a dtikrgBtc. Jnim AdaiBR**
J>ickiiit»vsi f<:v*^t?«rutt:c tiit extremes rf Hriiliiiiraii.
A44kijat r*^f^4^ xht Unioo as a Umnn nxi irms*
^joiJily, 4t«id *iA*: O/xnjiact of Unicm as a mere Xi&tr*
Allutfic*: *fi'i ^y>rrjmfrc« betwc^m equal and indrpmi^
^>U.te*. A ck^ ^xj^rtsrion of 3ai5 views on tiiis snbi^
it (vuud if! iiiK y^Ui]jh\ti entitled XazfonglMs ami MossMr
ihuuiUmn, w}uch wat> a reprint of letters printed lo
nt-Yfay^ft-r^^, durinj/ the Utter part of 1774 and the cary
|;-*M ';f <775, wrjii<;n by Adams, under the name d
NtnftiH^*liii, and by William Leonard, under the name *■
Mu^atiihuittianui. In a letter of March 6, I775» Ada»
DUiiiM t Sliiteu fiLiyf be united under one King. And dioBC
*Uttlrij Miuy he further cemented and united together by *
ir«iit)f u( i:uiiuiicrcc. Thi« is the case. We have, by our o««
380
America's Ultimatum, 1774 281
express consent, contracted to observe the Navigation Act,
and by our implied consent, by long usage and uninterrupted
acquiescence, have submitted to the other Acts of Trade,
however grievous some of them may be. This may be com-
pared to a treaty of commerce, by which these distinct States
are cemented together in perpetual league and amity. And
if any further ratifications of this pact or treaty are necessary,
the Colonies would readily enter into them, provided their
other liberties were inviolate.
In this view, Acts of Parliament were merely proposi-
tions to change the terms of the Treaty or Compact of
Alliance and Commerce, which were of no effect until as-
sen ted to by the Houses of Representatives of the re-
spective Colonies, representing the people of the Colonies,
when they became amendments to the Treaty or Com-
pact. Such a Union was merely temporary and inorganic.
The King was the Chief Executive of a number of sepa-
rate States, exercising inconsistent functions in his
various official capacities. The Union was through the
King as a natural person, not through the King in his
official capacity. One man was simply exercising the
functions which would usually be committed to several
men on account of the inconsistency between the func-
tions so exercised. In this view, any State of the Union
had the right, in case of dissatisfaction, to withdraw from
the partnership or voluntary association (or, to express it
technically in the language of the public law, to secede
from the Union), and there was no British Empire. The
advocates of this view were anti-Imperialists.
Dickinson, on the other hand, starting with the same
proposition that the Colonies were originally States (and
hence originally independent and equal with the State of
Great Britain), contended that, simultaneously with the
origin of the Colonies as States, the people of the Colo-
nies had entered into a compact with the people of Great
Britain, evidenced by the Charters authenticated by the
282 The Administration of Dependencies
signature of the King, that the Colonies, though States,
should be and remain in a permanent and organic Union
of subordination to the State of Great Britain on terms
just to both parties. In this view, this whole original
Treaty or Compact of Union had the effect to form the
people of Great Britain and the people of the Colonies
into a single political organism or State, composed of
Great Britain, as the Imperial State, and of the Colonies,
as subordinate Member-States, and called the British
Federal Empire. The Treaty or Compact was the su-
preme law, or, in other words, the Constitution of the
Empire, — supreme over every governmental action of the
States of the Empire, whether legislative or executive,
and hence supreme over Acts of Parliament. In this
view, no State of the Empire had any Tight to secede
from the Empire. A change from member-statehood to
independent statehood could result only from a dissolu-
tion and dismemberment of the State known as the
British Federal Empire. The advocates of this theory
were Federal-Imperialists.
Jefferson and Hamilton, neither of whom were members
of the Continental Congress at its first session, expressed
views in pamphlets which placed the former in the anti-
Imperialist and the latter in the Federal-Imperialist party,
though neither took an extreme view. Jefferson, in his
Summary View of the Rights of British America^ while
taking generally the anti-Imperialist view, regarded the
King as **the only mediatory power between the States
of the British Empire."
On September 24, it was voted "that the Congress do
confine themselves, at present, to the consideration of
such rights as have been infringed by Acts of the British
Parliament since the year 1763." This was a declaration
that it was the purpose of Congress to demand only a res-
toration of the Constitution of the British Federal Em-
pire as it existed at the close of the war in 1763.
America's Ultimatum, 1774 283
Having thus narrowed the issue, the Congress pro-
ceeded to narrow it still further by determining the
specific Acts of Parliament, the repeal of which they re-
garded as absolutely necessary to a settlement between
the Colonies and Great Britain. The vote on this sub-
ject, which was, under the circumstances, a vote concern-
ing the ultimatum which was to be addressed by the
Colonies to Great Britain, was taken on October 5,
on that day, Congress passed the following resolution :
Resolved: That the Committee appointed to prepare an
Address to his Majesty be instructed to assure his Majesty
that, in case the Colonies shall be restored to the state they
were in at the close of the late war, by abolishing the system
of laws and regulations for raising a revenue in America, for
extending the powers of Courts of Admiralty, for the trial of
persons beyond sea for crimes committed in America, for
affecting the Colony of Massachusetts Bay, and for altering
the government and extending the limits of Canada, the jeal-
ousies which have been occasioned by such acts and regulations
of Parliament would be removed and commerce again restored.
In the Declaration of Rights and Grievances of Octo-
ber 14, the terms of this ultimatum were followed, with
the addition of a demand for a discontinuance of the
annual statutes which Parliament had been in the habit
of enacting, providing for the quartering of troops in
America at the expense of the Colonies,
The declaration concerning the constitutional relation-
ship between Great Britain and the Colonies was con-
tained in the fourth, fifth, sixth, seventh, ninth, and tenth
resolutions, which were as follows :
4. That the foundation of English liberty and of all free
government is a right in the people to participate in their
legislative council: and as the English colonists are not
284 The Administration of Dependencies
represented, and from their local and other circumstances
cannot properly be represented in the British Parliament, they
are entitled to a free and exclusive power of legislation in their
several Provincial Legislatures, where their right of repre-
sentation can alone be preserved, in all cases of taxation and
internal polity y subject only to the negative of their Sovereign^ in
such manner as has been heretofore used and accustomed:
But from the necessity of the case^ and a regard to Vu mutual
interests of both countries^ we cheerfully consent to the operation
of such Acts of the British Parliament^ as are bona fide restrained
to the regulation of our external commerce^ for the purpose of
securing the commercial advantages of the whole £mp$re to the
Mother Country^ and the commercial benefits of its respective meiih
bers s excluding every idea of taxation, internal or external,
for raising a revenue on the subjects in America without their
consent.
5. That the respective Colonies are entitled to the common
law of England, and more especially to the great and ines-
timable privilege of being tried by their peers of the vicinage,
according to the course of that law.
6. That they are entitled to the benefit of such of the
English statutes as existed at the time of their colonization;
and which they have, by experience, respectively found to
be applicable to their several local and other circumstances.
7. That these, his Majesty's Colonies, are likewise entitled
to all the immunities and privileges granted and confirmed to
them by royal charters, or secured by their several codes of
Provincial laws.
9. That the keeping a standing army in these Colonies in
times of peace, without the consent of the Legislature of that
Colony in which such army is kept, is against law.
10. That it is indispensably necessary to good government,
and rendered essential by the English Constitution, that the
constituent branches of the Legislature be independent of
each other; that, therefore, the exercise of legislative power
in several Colonies by a Council appointed, during pleasure,
by the Crown, is unconstitutional, dangerous and destructive
to the freedom of American legislation.
America's Ultimatum, 1774 285
Of these resolutions, the fourth and sixth were passed
by less than a unanimous vote, though the record does
not show the exact character of the vote.
The declaration concerning the rights of the individual
inhabitants of the Colonies against the British Imperial
Government were contained in the first, second, third,
and eighth resolutions, all of which were adopted by a
unanimous vote, and which were as follows :
1. That they are entitled to life, liberty and property: and
they have never ceded to any foreign power whatever, a right
to dispose of either without their consent.
2. That our ancestors, who first settled these Colonies, were
at the time of their emigration from the Mother Country, en-
titled to all the rights, liberties and immunities of free and
natural-bom subjects within the Realm of England.
3. That by such emigration they by no means forfeited, sur-
rendered or lost any of those rights, but that they were and their
descendants now are entitled to the exercise and enjoyment of
all such of them, as their local and other circumstances enable
them to exercise and enjoy.
8. That they have a right to peaceably assemble, consider
of their grievances, and petition the King; and that all pros-
ecutions, prohibitory proclamations, and commitments for the
same, are illegal.
It was declared by the Congress, in a subsequent part
of the Declaration of Rights, that these rights of the
Colonies and their inhabitants existed "by the immuta-
ble laws of nature, the principles of the English Consti-
tution, and the several charters or contracts."
It is noticeable that in this Declaration, the principal
ground on which the claims of the Colonies were based
was "the laws of nature." While "the principles of the
English Constitution" and "the several charters or con-
tracts " were relied upon, the reliance was upon them only
286 The Administration of Dependencies
so far as they were not inconsistent with the principles of
justice and good government.
The first resolution, by necessary implication, con-
tained a claim that the Colonies were Member-States of
a Federal Empire. Great Britain was described, in that
resolution, by necessary implication as a "foreign power"
which had some right of disposition over the life, liberty,
and property of the inhabitants of the Colonies, but
which had not ''a right to dispose of either without their
consent.'' This consent, it was intimated, could only be
evidenced by some ''act of cession" by the inhabitants of
the Colonies, or by the Colonies, to Great Britain, as a
foreign power. This resolution was, in fact, a declaration
that Great Britain, as the Imperial State of the Federal
Empire, had a right to "dispose of" the life, liberty, and
property of the inhabitants of the Colonies, to the extent
to which they had ceded to it that right.
The language of the fourth resolution, it will be no-
ticed, was wide enough to include both theories of the re-
lationship between Great Britain and the Colonies. The
fact that the Colonies " cheerfully consented *' to the op-
eration of certain Acts of Parliament was not necessarily
inconsistent with the proposition that Parliament had a
constitutional right to pass these Acts, though, of course,
it was also consistent with the proposition that the power
of Parliament rested wholly on the assent and acquies-
cence of the Colonies. The admission that the consent
was given * ' from the necessity of the case and a regard to
the mutual interests of both countries " was very nearly
an admission that Parliament had a constitutional right.
A ** consent " founded on " the necessity of the case " is
the basis of all constitutional right of all governors over
the governed. It can well be seen that the resolution
could not have satisfied either the anti-Imperialists, who
believed that the relationship was one of temporary inor-
ganic alliance, or the Federal-Imperialists, who believed
America's Ultimatum, 1774 287
that the relationship was one of such constitutional de-
pendency on the State of Great Britain that it might ex-
ercise powers over the Colonies, on certain conditions
and with certain limitations, through its whole Govern-
ment or any designated instrumentality of government
adapted for the purpose. The resolution was evidently
the result of a compromise, and the lack of unanimity
was evidently caused by the holding out of some of
the extremists.
The fifth and sixth resolutions are interesting as show-
ing that, had there been no question concerning the
power of Parliament to make statutes to bind the Col-
onies, there would never have been any doubt but
that those parts of the common law, statutes, and
charters of Great Britain which establish great general
principles of government, and form what is called " The
British Constitution,** were in force in the Colonies in so
far as the Colonies had ** by experience, respectively
found them to be applicable to their several local and
other circumstances."
Dickinson evidently regarded the resolutions as show-
ing a clear intention, on the part of Congress, to seek only
the restoration of the Colonies to their constitutional re-
lationship of dependency on Great Britain, for, on the
next day after the adoption of the Declaration (Satur-
day, October 15), he was elected a delegate to the
Congress by the Pennsylvania Legislature, and on Mon-
day, October 17, took his seat in the Congress.
The Declaration of Rights and Grievances made by
the Congress of 1774 was, in fact, a Declaration of De-
pendence, in answer to the British Declaration of Depend-
ence of 1766. Great Britain had declared that, as the
Imperial State, it had, under the Constitution of the Brit-
ish Empire, a right to pass laws to bind the dependencies
in all cases whatsoever. America had declared that under
the Constitution of the British Empire, Great Britain,
288 The Administration of Dependencies
as the Imperial State, had the right to pass laws to bind
the dependencies in all cases where '* a proper regard to
the mutual interests " made it ** necessary " that supreme
legislation should be enacted, and that it exercised this
right, as a "foreign power," because the Colonies had
"ceded" to it the right.
In the Address to the People of Great Britain, adopted
by the Congress on October 21, it was made perfectly
clear that all that the Colonies demanded was a restora^
tion of the situation as it existed at the close of the war
in 1763, — that is, the restoration of the Federal Empire.
In that Address they said :
Permit us to be as free as yourselves, and we shall ever
esteem a union with you to be our greatest glory and our
greatest happiness, we shall ever be ready to contribute all in
our power to the welfare of the Empire, we shall consider your
enemies as our enemies and your interest as our own.
But if you are determined that your Ministers shall wan-
tonly sport with the rights of mankind, if neither the voice of
justice, the dictates of the law, the principles of the Constitu-
tion or the suggestions of humanity, can restrain your hands
from shedding human blood in such an impious cause, we
must then tell you that we will never submit to be hewers of
wood or drawers of water for any Ministry or Nation in the
world.
Place us in the same situation as we were at the close of the
last war and our former harmony will be restored.
In the Address to the King of October 26, which
was drafted by Dickinson, Great Britain was described
as "that nation in whose parental guidance on all impor-
tant affairs we have hitherto, with filial reverence, con-
stantly trusted." In this Address, the ultimatum of the
Colonies was thus formally worded :
We ask but for peace, liberty and safety. We wish not a
diminution of the prerogative, nor do we solicit the grant of
America's Ultimatum, 1774 289
any new right in our favor. Your royal authority and our
connection with Great Britain we shall always carefully and
zealously endeavor to support and maintain.
Filled with these sentiments of duty to your Majesty and of
affection to our parent State, deeply impressed by our educa-
tion and strongly confirmed by our reason, and anxious to
evince the sincerity of these dispositions, we present this peti-
tion only to obtain redress of grievances and relief from fears
and jealousies, occasioned by the system of statutes and
regulations adopted since the close of the late war for raising
a revenue in America, extending the power of Courts of Ad-
miralty and Vice- Admiralty, trying persons in Great Britain
for offences alleged to be committed in America, affecting the
Province of Massachusetts Bay, and altering the government
and extending the limits of Quebec; by the abolition of which
system the harmony between Great Britain and these Colonies,
so necessary to the happiness of both, and so ardently desired
by the latter, and the usual intercourses, will be immediately
restored. In the magnanimity and justice of your Majesty
in Parliament we confide for a redress of our other griev-
ances, trusting that when the causes of our apprehensions are
removed, our future conduct will prove us not unworthy
of the regard we have been accustomed, in our happier days,
to enjoy.
The American ultimatum was, therefore, essentially a
demand for the restoration of the Constitution of the
British Federal Empire, as it existed at the close of the
war of 1763. The only Acts of Parliament the repeal of
which was declared to be an absolute prerequisite had
been passed since 1763, and each of them violated, in
some clear and unmistakable way, the Constitution of the
Empire as it then existed. Those Acts concerning which
there was the least doubt were left open for amicable ad-
justment, after the general principles of the relationship
should have been fixed by a formal restoration of that
Constitution.
"9
290 The Administration of Dependencies
The form which the Congress gave to the instruments
by which this ultimatum was declared was exactly con-
sistent with the theory which the Federal-Imperialist
majority held concerning the political relationship be-
tween the Colonies and Great Britain.
In order to appreciate the meaning of these instru-
ments, it is necessary to consider the form inrhich the ac-
tion of Congress would inevitably have taken under the
two theories concerning the relationship.
If the Colonies were States in a temporary inoi^fanic
Union with the Stote of Great Britain, as the anti-Im-
perialist party in America contended, so that Acts of Par-
liament had no effect as legislation in the Colonies and
were merely propositions of the State of Great Britain to
change the terms of the Treaty or Compact of Union,
the ultimatum of the Colonies, in case the State of Great
Britain insisted, by Acts of Parliament or otherwise, on
changing the terms of the Treaty or Compact of Union
against the wish of the Colonies, would have been deliv-
ered in an Address by the people of the Colonies as-
sembled to the people of the State of Great Britain. The
King, in such a case, would have been disqualified, by
conflict of interest, from acting as the Chief Executive of
either the State of Great Britain or the Colonies, and
could have acted only as a friendly third person, or
mediator. He would have had no "authority " over the
opposing parties, but only an ** influence " with them. In
such an ultimatum, the Colonies would have notified the
State of Great Britain that, if its terms were not complied
with, they would secede from the Union.
If the Colonies were States in permanent organic Union
with the State of Great Britain, as the Federal-Imperi-
alist party in America contended, so that they all to-
gether constituted a single political organism, that is, a
State, called a Federal Empire, under a permanent un-
written Constitution conceived of as emanating from all
America's Ultimatum, 1774 291
the people of the Empire assembled, which was supreme
throughout the whole organism, the ultimatum of any
Member-State in the Empire, against the Imperial State
or against another Member-State, for committing any gov-
ernmental act inconsistent with the Constitution of the
Empire, would have been addressed to the person or body
of persons in the Empire whose function it was to interpret
and adjudicate the terms of the unwritten Constitution of
the Empire, and to cause the Constitution, as so interpreted
and adjudicated, to be executed throughout the Empire.
If this person were the King, the ultimatum of the Colonies
would have been delivered to him, if it were the House
of Lords, tp that body, if it were the House of Commons,
to that body, if it were the whole Parliament, consisting
of King, Lords, and Commons assembled, to that body.
The person or body of persons so addressed would have
been petitioned to exercise his or their "power " or "au-
thority'* to adjudicate and declare the Constitution of
the Empire, to enjoin and prevent the execution of all
acts inconsistent with the Constitution, and to execute
the Constitution by affirmative acts. Such an ultima-
tum would virtually have been a suit in court, and it
would not have been necessary for the complaining
party to state what it would do if its complaint were
fairly adjudicated against it, since it would have gone
without saying that it would submit to such an ad-
judication. If the oiKcer or tribunal designated as the
proper official to adjudicate and execute the Constitution
refused to act as such and was supported in its refusal by the
opposing party, the Empire would be ipso facto dissolved.
The Address to the King was plainly based on this last
theory. He was not asked to use his influence as a
friendly third person, by way of mediation, but he was.
asked to exercise power and authority to adjudicate, de-
clare, and execute the unwritten Constitution of the
Federal Empire, as the sole official of the Empire upon
« <
it
292 The Administration of Dependencies
whom that function rested. As the power of adjudica-
tion, accompanied by the power of execution, is exactly
the power of disposition, the King was addressed as the
Disposer of the affairs of the Empire.
The King was implored "as the loving father of his
whole people, connected by the same bonds of law, loy-
alty, faith and blood, although dwelling in various coun-
tries," not to "suffer //// transcendent relation formed by
these ties to be further violated." He was petitioned to
redress the grievances " of the Colonies, by using his
royal authority and interposition " for the * * relief ' ' of the
Colonies against a "system of statutes and regulations**
of the British Parliament alleged to be a wrongful action
on the part of Great Britain toward the Colonies. The
Colonies declared that they "wished not a diminution of
the prerogative," nor "solicited the grant of any new
right in their favor," and that "they should always care-
fully and zealously endeavor to support and maintain the
King's "royal authority " over them and their "connec-
tion with Great Britain."
An "authority " of the King to "interpose " so as to
prevent the execution of the legislation of the State of
Great Britain was essentially the same power as the
King's Chancellor exercised in suits between private per-
sons when he enjoined the performance of a threatened
act because in violation of a contract for personal services.
The State of Great Britain was regarded in the Address
to the King as a person which had entered into an un-
written contract with the Colonies, as persons, to perform
services for them. It was complained of as a party de-
fendant in a judicial action because it was threatening to
insist upon performing services for the Colonies which
were not included in the contract, which the Colonies did
not desire, and which were not for their benefit. The
King was prayed to interpret the terms of the contract,
and, on its being determined by him that Great Britain
America's Ultimatum, 1774 293
had violated the terms of the contract, to enjoin the
further performance or attempt to perform the services
not included in it. This unwritten contract was described
in the Address as "the transcendent relation formed by
the ties of law, loyalty, faith and blood," which was the
supreme law governing the relations of the States of the
Empire to each other.
The purpose of the Address to the People of Great
Britain was, in part, to urge them to settle the matter
out of court and thus avoid the necessity of having the
matter go to final judgment, and in part to notify them
that, if they persisted in supporting their Parliament in
the position that the Empire was not a federal organism
and thus making it impossible for the King to adjudicate
and execute the unwritten Constitution of the Empire,
the Colonies would regard the Empire as dissolved by the
act of the people and State of Great Britain. In this Ad-
dress it was declared that the statutes complained of were
violations of the ** rights of the whole Empire," — that is,
of the unwritten Constitution of the Federal Empire.
The people of Great Britain were declared to be addressed
as ** fellow-subjects " of the same King, — that is, as sub-
ject to the adjudication and execution, by the King of
Great Britain, as ex officio the Disposer of the affairs of the
Empire, of the terms of the Constitution of the Empire.
An appeal was made to their ** justice and magnanimity "
to compel the Parliament to repeal the statutes which
were in excess of the constitutional powers of the State
of Great Britain, and thus remove the necessity for an
adjudication and execution of the Constitution of the
Empire by the King.
The ultimatum of America therefore was, in a word,
that the British Empire be recognized, by the State of
Great Britain, as a Federal Empire.
CHAPTER XVII
BRITISH PROPOSITIONS, 1775
THE decision in the case of Campbell v. Hall, ren-
dered November 28, 1774, after four arg^uments,
by the Court of Kings Bench, presided over by
Chief Justice Mansfield, recognizing as it did that the
King had legislative power over dependencies arising by
conquest, and that such power was conditioned and
limited so that he could make no laws which were "con-
trary to fundamental principles, or excepting from the
laws of trade or authority of Parliament, or granting
privileges [to inhabitants of the Colonies] exclusive of
his other subjects," gave a new trend to thought on both
sides of the water, and particularly in America. Thence-
forward, though the Court in that case had recognized
Parliament as the Supreme Legislature of the Empire,
there was a distinct and increasing tendency in America
to regard the King — that is, the King in Council — as the
Supreme Head of the Empire, and to deny to Parliament
all power in the Empire.
The exact question involved in that case was, whether
the King, after having granted, by Proclamation in
Council, to the Island of Grenada, in the West Indies —
one of the countries ceded by France to Great Britain by
the Treaty of Paris of February 4, 1763, upon the close of
the war — the right to have an elected House of Repre-
sentatives as a part of its General Assembly, could, by a
subsequent Proclamation in Council, lay a tariff duty on
articles imported into the Island. The Court held that
294
British Propositions, 1775 295
the King would have had power to levy the tax, had he
not granted Grenada the right to have an elective branch
of its Legislature, but that by such grant he had precluded
himself from levying the tax.
In the argument on behalf of the Crown, Attorney
General Thurlow (afterwards Lord Chancellor) said :
My reason for stating that dominion and property were
acquired over Grenada by conquest was, because I shall infer
that the Constitution has intrusted the King with the disposition
of the property y and with the ordering of that dominion conquered;
subject to the legislation of the country [/. e,y of Great
Britain].
The King, both in conquests and colonies^ has had this right.
There has not been an instance in which the King has fiot
exercised the disposition of the laws and property of the conquered
country.
Lord Mansfield, delivering the opinion of the Court,
said:
If the King has power (and when I say the King, I mean in
this case to be understood "without concurrence of Parlia-
ment ") to make new laws for a conquered country, this being
a power subordinate to his own authority as a part of the Su-
preme Legislature in Parliament, he can make none which
are contrary to fundamental principles, none excepting from
the laws of trade or authority of Parliament, or [granting]
privileges exclusive of his other subjects.
The present proclamation [of July 20, 1764, levying the tax]
is an act of this subordinate legislative power. If made be-
fore the nth of October, 1763 [the date of the proclamation
granting to Grenada the right to have a Legislative Assembly],
it would have been made on the most reasonable and equitable
grounds; putting the Island of Grenada on the same footing
as the other Islands. . . . The only question which re-
mains then is, whether the King had power, after the 4th of
February, 1763, of himself, to impose the duty. . . •
296 The Administration of Dependencies
It is not to be wondered at that an adjodged case in point
is not to be found; no dispute ever was started before upon
the King's legislative right over a conquest. It never was de-
nied in a court of law or equity in Westminster Hall, never
was questioned in Parliament. . . .
Upon full consideration, we are all of opinion that before
the 20th of July, 1764, the King had precluded himself frcMn
an exercise of the legislative authority by virtue of his prerog-
ative, which he had before over the Island of Grenada. . . .
We therefore think that, by the two proclamations [of Oc-
tober II, 1763, and March 26, 1764, the latter inviting settleis
to the Island] and the commission to Governor Melville [of
April 29, 1764], the King had immediately and irrevocably
granted to all who did or should inhabit, all who had or should
have property in the Island of Grenada — in general, to all
whom it may concern — that the subordinate legislation over
the Island should be exercised by the Assembly and the Got*
emor and Council, in like manner as in the other Provinces
under the King.
And, therefore, though the right of the King to have levied
taxes on a conquered country, subject to him in right of his
Crown, was good, and the duty reasonable, equitable and ex-
pedient, and according to the finding of the verdict paid in
the Barbadoes and all the other Leeward Islands; yet, by the
inadvertency of the King's servants, the order in which the
several instruments passed the office (for the patent of the 20th
of July, for raising the impost stated, should have been first),
the order is inverted and the last we think contrary to and a
violation of the first, and therefore void.
However proper soever the thing may be respecting the ob-
ject of these letters patent, it can only now be done . . .
by act of the Assembly of the Island, or by the Parliament of
Great Britain.
While the British looked upon this case as supporting
the claim of Parliament over the Colonies, the Americans,
on the other hand, disregarded this feature of it (which
was, in fact, a mere dictum)^ and laid stress upon the
British Propositions, 1775 > 297.
point actually decided, namely, that the King — that is,
the King in Council — had legislative power over the de-
pendencies of Great Britain, but that his legislative power
was conditioned and limited.
As Blackstone, in his ComtnentarieSy had regarded the
American Colonies as conquests, the effect of this de-
cision, if his proposition was correct, was to declare
that the King had legislative power over the American
Colonies. Though the Americans vigorously denied
Blackstone's proposition, they seem to have accepted the
statement of Attorney General Thurlow, in the argument
of the case, that the power of the King was the same
** both in conquests and in colonies."
After that decision, the only question left, as the
Americans looked at it, was whether the King or the
Parliament was the Supreme Head of the Empire — that
is, whether Parliament had no power over the Colonies
or whether it had power over them under the same con-
ditions and limitations as the King, in the exercise of
which, however, it was supreme over the King.
If the Colonies were true States, the only bond of union
between them and the State of Great Britain was logically
the King, since the King was the representative of that
State in its dealings with foreign States. If the Colonies
were municipal corporations, Parliament was the repre-
sentative of the State of Great Britain in dealing with
them, and its powers were the same as it exercised in the
Realm. If they were neither true States nor true muni-
cipal corporations, the question arose whether they most
nearly resembled States or municipal corporations. The
Colonies claimed that they so nearly resembled States
that the King was the sole representative of the State
of Great Britain as respected them. Some persons in
the Colonies stopped here, and denied all power to Par-
liament; others took the position that, while the King
was the usual and proper representative of the State of
298 The Administration of Dependencies
Great Britain in its relations with the Colonies, the
Parliament was, within the same sphere of action as
the King, supreme over him and hence over the Colonial
Legislatures.
The difference in view concerning the respective powers
of the King and Parliament was really a difference in
view concerning the character of the British Empire. If
it was a federal organism, the power of both the King
and Parliament over the Colonies was the same in char-
acter and extent, except that the King was the superior
and Parliament the supreme governmental agency of the
Empire. If the British Empire was a unitary organism,
the power of Parliament was different from the power of
the King, equally in the Realm and in the Empire.
Among the persons in Great Britain who, in the
early part of 1775, had grasped the American conception
of the British Empire as a federal organism, was Lord
Chatham. When, therefore, the Houses of Parliament
were, during the last days of January, 1775, considering
the American Papers laid before them by the Ministry on
January 20, and the Ministry was attempting to procure
the adoption of an Address to the King, declaring the
Colonies in a state of rebellion, Lord Chatham applied
himself to the preparation of a Bill which should embody
the principles underlying the British Empire as a federal
organism, counselling with Franklin concerning the de-
tails, and on February i, 1775, introduced his Bill in the
House of Lords.
The Bill showed, from its title, that it was based on
the theory that the British Empire was a federal organism.
It was entitled ** A Bill for a Provisional Act for Settling
the Troubles in America and for Asserting the Supreme
Legislative Authority and Superintending Power of Great
Britain over the Colonies." The authority and power
over the Colonies, according to this title, was vested in
the State of Great Britain, from which it necessarily
British Propositions, 1775 299
follows that the Colonies were related to the State of
Great Britain as States and that the powers of both King
and Parliament were measured by the powers which the
State of Great Britain had, under the contract or consti-
tution existing between itself and the Colonies as States.
The full text of the Bill was as follows :
Whereas, by an Act, 6 Geo. III., it is declared that Parlia-
ment has full power and authority to make laws and statutes
to bind the people of the Colonies in all cases whatsoever:
And whereas reiterated complaints and most dangerous dis-
orders have grown, touching the right of taxation claimed and
exercised over America, to the disturbance of peace and good
order there, and to the actual interruption of the due inter-
course from Great Britain and Ireland to the Colonies; deeply
affecting the navigation, trade and manufactures of this King-
dom, and of Ireland, and ani\ouncing farther an interruption
of all exports from the said Colonies to Great Britain, Ireland,
and the British islands in America: Now, for the prevention
of these ruinous mischiefs, and in order to an equitable, hon-
orable, and lasting settlement of claims not sufficiently ascer-
tained and circumscribed ; May it please your most excellent
Majesty that it may be declared, and be it declared, by the
King's most excellent Majesty, by and with the consent of the
Lords Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same, that
the Colonies of America have been, are, and of right ought to
be dependent upon the Imperial Crown of Great Britain, and
subordinate unto the British Parliament; and that the King's
most excellent Majesty, by and with the advice and consent
of the Lords Spiritual and Temporal, and Commons, in Par-
liament assembled, had, hath, and of right ought to have, full
power and authority to make laws and statutes of sufficient
force and validity to bind the people of the British Colonies
in America, in all matters touching the general weal of the
whole dominion of the Imperial Crown of Great Britain, and
beyond the competency of the Local Representative of a
distinct Colony, and most especially an indubitable and in-
300 The Administration of Dependencies
dispensable right to make and ordain laws for regulating
navigation and trade throughout the complicated system of
British commerce, — the deep policy of such prudent acts up-
holding the guardian navy of the whole British £mpirey — and
that all subjects in the Colonies are bound in duty and alle-
giance duly to recognize and obey (and they are hereby
required so to do) the supreme legislative authority and super-
intending power of the Parliament of Great Britain, as afore-
said.
And whereas, in a petition from America to his Majesty, it
has been represented that the keeping a standing army within
any of the Colonies, in time of peace, without consent of the
respective Provincial Assembly there, is against law: Be it
declared by the King's most excellent Majesty, by and with
the advice and consent of the Lords Spiritual and Temporal,
and Commons, in this present Parliament assembled, that the
declaration of right, at the ever-glorious Revolution, namely,
'* that the raising and keeping a standing army within the
Kingdom, in time of peace, unless it be by consent of Parlia-
ment, is against law, ' ' having reference only to the consent of
the Parliament of Great Britain, the legal, constitutional, and
hitherto unquestioned prerogative of the Crown to send any
part of such army, so lawfully kept, to any part of the British
dominions and possessions, whether in America or elsewhere,
as his Majesty, in the due care of his subjects, may judge nec-
essary for the security and protection of the same, cannot be
rendered dependent upon the consent of a Provincial Assem-
bly in the Colonies, without most dangerous innovation and
derogation from the dignity of the Imperial Crown of Great
Britain. Nevertheless, in order to quiet and dispel jealousies
and fears, be it hereby declared, that no military force, how-
ever raised and kept according to law, can ever be cm-
ployed to violate and destroy the just rights of the people.
Moreover, in order to remove, forever, all causes of per-
nicious discords, and in due contemplation of the vast in-
crease of possessions and population in the Colonies; and
having at heart to render the condition of so great a body of
industrious subjects there, more and more happy, by the
British Propositions, 1775 301
sacredness of property, and of personal liberty, and of more
extensive and lasting utility to the parent Kingdom, by indis-
soluble ties of mutual affection, confidence, trade and recipro-
cal benefits; be it declared and enacted by the King's most
excellent Majesty, by and with the advice and consent of the
Lords Spiritual and Temporal, and Commons, in this present
Parliament assembled, and it is hereby declared and enacted,
by the authority of the same, that no tallage, tax or other
charge for his Majesty's revenue, shall be commanded or levied
from British freemen in America, without common consent,
by act of Provincial Assembly there, duly convened for that
purpose.
And it is hereby further declared and enacted by the
King's most excellent Majesty, by and with the advice and
consent of the Lords Spiritual and Temporal, and Commons,
in this present Parliament assembled, and by the authority of
the same, that it shall and may be lawful for delegates from
the respective Provinces, lately assembled at Philadelphia, to
meet in general Congress at the said Philadelphia, on the
ninth day of May next ensuing, [the day preceding the
day on which the Congress was to reassemble, it having
adjourned on October 26, 1774, to meet again at Phila-
delphia on May 10, 1775], in order then and there to
take into consideration the making due recognition of the
supreme legislative authority and superintending power of
Parliament over the Colonies, as aforesaid; and moreover,
may it please your most excellent Majesty, that the said dele-
gates to be in Congress assembled in manner aforesaid, may
be required, and the same are hereby required, by the King's
Majesty sitting in his Parliament, to take into consideration,
(over and above the usual charge for support of civil govern-
ment in the respective Colonies) the making a free grant to
the King, his heirs and successors, of a certain perpetual
revenue, subject to the disposition of the British Parliament,
to be by them appropriated, as they in their wisdom shall
judge fit, to the alleviation of the national debt: no doubt
being had, but the just, free aid will be in such honorable
proportion, as may seem meet and becoming from great and
302 The Administration of Dependencies
flourishing Colonies towards a parent country, laboring
under the heaviest burdens, which (in no inconsiderable part)
have been willingly taken upon ourselves and posterity, for
the defence, extension and prosperity of the Colonies.
And to this great end, be it hereby further declared and
enacted, that the general Congress (to meet at Philadelphia
aforesaid) shall be, and is hereby authorized and enip>owered,
(the delegates composing the same being first sufficiently fur-
nished with powers from their respective Provinces for this
purpose) to adjust and fix the repartitions and quotas of the
several charges to be borne by each Province respectively,
towards the general contributary supply; and this in such fair
and equitable measure as may best suit the abilities and due
convenience of all. Provided always, that the powers for fixing
the said quotas, hereby given to the delegates from the old
Provinces composing the Congre'ss, shall not extend to the
new Provinces of East and West Florida, Georgia, Nova
Scotia, St. John's, and Canada; the circumstances and abili-
ties of the said Provinces being reserved for the wisdom of
Parliament in their due time. And in order to afford neces-
sary time for mature deliberation in America, be it hereby
declared that the provisions for ascertaining and fixing the
exercise of the right of taxation in the Colonies, as agreed and
expressed by this present Act, shall not be in force, or have
any operation, until the delegates to be in Congress assembled,
sufficiently authorized and empowered by their respective
Provinces to this end, shall, as an indispensable condition,
have duly recognized the supreme legislative authority and
superintending power of the Parliament of Great Britain over
the Colonies as aforesaid. Always understood, that a free
grant of an aid, as hereinbefore required and expected from
the Colonies, is not to be considered as a condition of redress,
but as a just testimony of their affection.
And whereas divers Acts of Parliament have been humbly
represented, in a petition to his Majesty from America, to have
been found grievous, in whole or in part, to the subjects of
the Colonies, be it hereby declared, by the King's most excel-
lent Majesty, by and with the advice and consent of the Lords
British Propositions, 1775 303
Spiritual and Temporal, and Commons, in this present Parlia-
ment assembled, and by the authority of the same, that the
powers of Admiralty and Vice-Admiralty Courts in America
shall be restrained within their ancient limits, and the trial by
jury, in all civil cases, where the same may have been abol-
ished, restored; and that no subject in America shall, in
capital cases, be liable to be indicted and tried for the same,
in any place out of the Province wherein such offence shall be
alleged to have been committed; nor be deprived of a trial
by his peers of the vicinage; nor shall it be lawful to send
persons indicted for murder, in any Province of America, to
another Colony, or to Great Britain, for trial. And it is hereby
declared and enacted, by the authority aforesaid, that all and
every the same Acts, or so much thereof as are represented
to have been found grievous, namely, the several Acts of 4
Geo. III. ch. 15 [the Tariff Act of 1764], and ch. 34 [the
Colonial Bills of Credit Act of 1764], 5 Geo. III. ch. 25 [the
Post Office Act of 1765], 6 Geo. III. ch. 52 [the Tariff Act
of 1766], 7 Geo. III. ch. 41 [the Commissioners of Customs
Act of 1767] and ch. 46 [the Tariff Act of 1767], 8 Geo. III.
ch. 22 [the Vice-Admiralty Court Act of 1768], 12 Geo. III.
ch. 24 [the Trial for Treason Act of 1772], with the three
Acts, for Stopping the Port and Blocking up the Harbor of
Boston, for Altering the Charter and Government of Massa-
chusetts Bay, and that entitled "An Act for the Better Ad-
ministration of Justice, &c. ;" also the Act for Regulating the
Government of Quebec; and the Act, passed in the same
session, relating to the Quarters of Soldiers — shall be, and
, are, hereby suspended, and not to have effect or execution,
from the date of this Act. And be it moreover hereby
declared and enacted by the authority aforesaid, that all
and every the before-recited Acts, or the parts thereof com-
plained of, shall be, and are, in virtue of this present Act,
finally repealed and annulled from the day that the due
recognition of the supreme legislative authority and super-
intending power of Parliament over the Colonies shall have
been made on the part of the said Colonies.
And for the better securing due and impartial administra-
304 The Administration of Dependencies
tion of justice in the Colonies, be it declared and enacted, bj
the King's most excellent Majesty, by and with the advice
and consent of the Lords Spiritual and Temporal, and Com-
mons, in this present Parliament assembled, that his Majesty's
judges in the courts of law in the Colonies in America, to be
appointed with salaries by the Crown, shall hold their offices
and salaries, as his Majesty's judges in England, quamdiuu
bene gesserint. And it is hereby farther declared by the
authority aforesaid, that the Colonies in America are justly
entitled to the privileges, franchises, and immunities granted
by the several charters or constitutions, which ought not to be
invaded or resumed, unless for misuse, or some legal ground
of forfeiture. So shall true reconcilement avert impendiog
calamities, and this most solemn national accord hetween
Great Britain and her Colonies stand an everlasting mona-
ment, of clemency and magnanimity in the benignant Father
. of his People ; of wisdom and moderation in this great nation,
famed for humanity as for valor; and of fidelity and grateful
affection from brave and loyal Colonies to their parent King-
dom, which will ever protect and cherish them.
In the account given in the Parliafnentary History of
the proceedings in the House of Lords of February i, it
is said :
The Earl of Chatham rose. His Lordship began with re-
minding the House, that the last time he had the honor of
imparting his sentiments to them, he had informed them, that
with their indulgence, he would submit certain propositions to
their consideration, as a basis for averting the dangers which
now threatened the British Empire; and that in performance
of his promise, he had sketched the outlines of a Bill, which
he hoped would meet with the approbation of every side of
the House. He proceeded to state the urgent necessity of
such a plan, as, perhaps, a period of a few hours might for-
ever defeat the possibility of any such conciliatory inter-
vention. He represented Great Britain and America as
drawn up in martial array, waiting for the signal to engage in
British Propositions, 1775 305
a contest, in which it was little matter for whom victory de-
clared, as ruin and destruction must be the inevitable conse-
quence to both parties. He wished, from a principle of duty
and afifection, to act the part of a mediator. He said, how-
ever, that no regard for popularity, no predilection for his
country, not the high esteem he entertained for America on
one hand, nor the unalterable steady regard he entertained for
the dignity of Great Britain on the other, should at all influ-
ence his conduct; for though he loved the Americans, as men
prizing and setting the just value on that inestimable blessing.
Liberty ; yet, if he could once bring himself to be persuaded
that they entertained the most distant intentions of throwing
off the legislative supremacy and the great constitutional
superintending power and control of the British Legislature,
he should be the very person himself who would be the first
and most zealous mover for securing and enforcing the power
by every possible exertion this country was capable of making.
He recurred to his former arguments on the great constitu-
tional question of taxation and representation; insisted they
were inseparable, and planted so deeply in the vital principles
of the Constitution, as never to be torn up, without destroying
and pulling asunder every band of legal government and good
faith, which formed the cement that united its several con-
stituent parts together. He entreated the assistance of the
House to digest the crude materials which he presumed to
now lay before it, and bring it and reduce it to that form
which was suited to the dignity and importance of the subject,
and to the great ends to which it was ultimately directed.
He called on them to exercise their candor on the present
occasion, and deprecated the effects of party or prejudice, of
factious spleen, or a blind predilection. He avowed himself to
be actuated by no narrow principle, or personal consideration
whatever; for though the present Bill might be looked on as a
Bill of Concession, it was impossible but to confess at the same
time that it was a Bill of Assertion.
The Bill was read the first time, and a motion to lay
it on the table was made. The Earl of Sandwich, for the
ao
3o6 The Administration of Dependencies
Government, moved an amendment, " that the said Bill
be rejected." The Earl of Gower, speaking in favor of
its rejection, said " that it fell in with the ideas of
America in almost every particular."
The Bill was debated at some length. Towards the
close of the debate, the Earl of Chatham, in reply to the
opponents of the Bill, said :
The indecent attempt to stifle this measure in embryo may
promise consequences the very reverse of what I am certain
will be the case if the Bill is admitted. The friends of the
present amendment may flatter themselves that the contents
of the Bill will sink into silence and be forgotten, but I believe
they will find the contrary. This Bill, though rejected here,
will make its way to the public, to the nation, to the remotest
wilds of America ; it will in such a course, undergo a deal of
cool observation and investigation ; and whatever its merits
or demerits may be, it will stand or fall by them alone. It
will, I trust, remain a monument of my poor endeavors to
serve my country ; and, however faulty or defective, will at
least manifest how zealous I have been to avert those impend-
ing storms which seem ready to burst on it, and forever over-
whelm it in ruin.
In spite of Lord Chatham's protest, the resolution for
rejection was adopted by a vote of 6i to 32.
An examination of Lord Chatham's Bill shows that it
was carefully framed as an answer to the American ulti-
matum. Every point made by the Americans was met.
Where it seemed to him compatible with just principles,
he yielded the point ; where it seemed to him that the
Americans had asked more than was just, he advanced a
counter-proposition, yielding all he thought proper.
The claim of right to tax the dependencies, he yielded,
so far as the American Colonies were concerned, reserving
to Parliament the determination of its rights in this re-
spect with regard to the other dependencies. He thus
placed the American Colonies in a class by themselves,
British Propositions, 1775 307
as entitled to a special regime by reason of the fact that
they had elective Legislatures.
By the Bill, every Act of the British Parliament which
Congress, in its Declaration, had named as a grievance
was to be repealed. On the question of quartering troops
on the Colonies, he yielded all that was really necessary
by declaring that no military force should ever be em-
ployed to violate or destroy the just rights of the people.
In the most important particular, namely, the basis on
which the power of Parliament rested, the resolutions of
Congress and Lord Chatham's Bill, though apparently at
variance, were really very close together, as will appear
by a comparison of the one with the other.
Congress had, by its resolution, practically based the
power of Parliament over the Colonies, as has before
been noticed, on the necessity of the case, since "con-
sent" given to an act "from necessity of the case" is
simply a yielding to the necessity. The rightfulness of
the act in such a case is determined by the necessity
for it, and not by the consent given. Granted that the
extent of the power of Parliament in the Colonies was
to be determined **by the necessity of the case," Lord
Chatham's description of the power of Parliament was
unexceptionable when he called it a power **to make
laws and statutes of sufficient force and validity to bind
the people of the British Colonies in America in all
matters touching the general weal of the whole dominion
of the Imperial Crown of Great Britain, and beyond the
competency of the Local Representative, [/. ^., the Local
Government], of a distinct Colony," — especially when he
further qualified the power by describing it **as the
supreme legislative authority and superintending power."
Superintendence necessarily implied that the action of
Parliament should be based upon "the necessity of the
case," to be determined expertly in each particular case
as it arose.
yj^ The Administration of Dependencies
The Bill showed that Lord Chatham had
thought far beyond the position he had take
debates on the Stamo Act, and that the Americas C3i>
ception, worked out by Dickinson, of the British F *J^
af a federal organism, of which Great Britain, as the Is-
perial State^ was the Central Government, and the J
ican Colonies, Member-States, had been accepted by
Only as influenced by this conception coold he have de-
clared the power of Parliament to be "a supieme legs-
lative authority and superintending power'* — that is. i
superintending power accompanied by a supreme kgb-
lative authority sufficient to effectuate it. In makii^
this declaration, he had to break with the Dedaratorr
Act of 1766, and with the dictum of the highest couit of
England, presided over by Lord Mansfield, a Chief Jus-
tice of exceptional ability.
In recognizing the Congress of the Colonies as a bodv
competent to bind them, the Bill recognized the right of
dependencies to be united or federated in any way that
the common interests of any group might dictate.
In recognizing the right of dependencies which were
so far advanced in density of population and in civiliza-
tion as to be able to manage their local affairs through an
elected legislature, to tax themselves for local purposes.
and to determine the amount of their contribution for
Imperial purposes after advising with the Imperial au-
thorities, and in insisting upon the right of the Imperial
State to determine the amounts of Imperial and local
taxation in dependencies not advanced to the stage of
having an elected legislature, the Bill preserved the re-
spective principles for which the Americans on the one
side and the British on the other were contending, so far as
each principle could be preserved, consistently with the
interests of the Empire.
The provisions regarding the security of charter rights
and the separation of the Imperial Judiciary from the
British Propositions, 1775 309
Colonial Judiciary and the responsibility of the Colonial
Judiciary to the people of the Colonies, were corollaries
from the proposition that the power of Parliament, as
the Imperial Parliament, was a superintending power,
different from that exercised by it as the Local Legis-
lature of Great Britain, and different from that exercised
by the Local Legislatures of the Colonies.
In less than a week after Lord Chatham's Bill was re-
jected— on February 7, 1775 — both Houses united in an
Address to the King, procured by the management of
Lord North and his Ministry, which was virtually a
permission to the King to make a declaration of civil
war. In this Address they said :
We find that a part of your Majesty's subjects in the Pro-
vince of Massachusetts Bay have proceeded so far to resist
the authority of the Supreme Legislature, that a rebellion at
this time actually exists within the said Province; and we see
with the utmost concern that they have been countenanced
and encouraged by unlawful combinations and engagements
entered into by your Majesty's subjects in several of the other
Colonies. . . . We can never so far desert the trust im-
posed on us as to relinquish any part of the sovereign authority
over all your Majesty's dominions, which by law is vested in
your Majesty and the two Houses of Parliament. . . .
We ever have been, and always shall be ready to pay atten-
tion and regard to any real grievance of any of your Majesty's
subjects which shall, in a constitutional manner, be laid before
us; and whenever any of the Colonies shall make a proper
application to us, we shall be ready to afford them every just
and reasonable indulgence. At the same time, we consider it
our indispensable duty, humbly to beseech your Majesty that
you will take the most effectual measures to enforce due obe-
dience to the laws and authority of the Supreme Legislature;
and we beg leave in the most solemn manner to assure your
Majesty that it is our fixed resolution, at the hazard of our
lives and properties, to stand by your Majesty, against all
3IO The Administration of Dependencies
rebellious attempts, in the maintenance of the just rights of
your Majesty and the two Houses of Parliament.
The dissenting members of the House of Lords, eigh-
teen in number, united in a written protest against this
Address, in which they declared that it "amounted to a
declaration of war" against the Colonies.
On February 27, 1775, the House of Commons, in
Committee of the Whole, adopted a report dictated by
Lord North, in behalf of the Ministry, making a pro-
position to the American Colonies. The report read ;
That it is the opinion of this Committee, that when the
General Council and Assembly, or General Court, of any of
his Majesty's Provinces or Colonies in America, shall propose
to make provision according to the condition, circumstance,
or situation of such Province or Colony, for contributing their
proportion of the common defence (such proportion to be
raised under the authority of the General Court or General
Assembly of such Province or Colony, and disposable by Par-
liament) and shall engage to make provision for the support of
the civil government and the administration of justice in such
Province or Colony, it will be proper, if such proposal shall be
approved by his Majesty and the two Houses of Parliament,
and for so long as such provision shall be made accordingly,
to forbear, in respect of such Province or Colony, to lay any
duty, tax or assessment, except only such duties as it may be
expedient to continue to levy or impose for the regulation of
commerce ; the net produce of the duties last mentioned to be
carried to the account of such Province or Colony respectively.
This proposition was objectionable for many reasons.
It was merely tentative and bound Great Britain to
nothing; it denied the right of the dependencies of the
British Empire to be federated or united in such a way as
the interests of a particular group might require ; and it
was based on the theory that Great Britain, as the Im-
perial State, had an unconditional and unlimited power
British Propositions, 1775 311
of legislation in the dependencies, which it might sus-
pend temporarily in return for a consideration which it
deemed adequate.
Burke perceived the futility of Lord North's Proposals,
and while they were in process of being transmitted to
America, introduced in the House of Commons, on March
22, 1775, his Resolutions for Conciliation with the
Colonies. I'hese resolutions had, for their sole object,
the restoration of the Constitution of the Empire, as
it existed at the close of the war in 1763. They
declared the right of the American Colonies to tax
themselves, the expectation being expressed that they
would grant ** subsidies and public aids for his Majes-
ty's service, according to their abilities," because ** it
has been found by experience that the manner of
granting the said supplies and aids by those General As-
semblies has been more agreeable to the inhabitants of
the said Colonies, and more beneficial and conducive to
the public service than the mode of giving and granting
aids and subsidies in Parliament, to be raised and paid in
said Colonies." The resolutions further proposed to re-
peal all the objectionable Acts of Parliament, to allow
all judges appointed by the Crown in the Colonies to
hold office during good behavior, and to regulate the
Courts of Admiralty in the Colonies ** in such a manner
as to make the same more commodious to those who sue
or are sued in those courts.*'
The resolutions were immediately rejected by a vote of
270 to 78.
In his speech in support of these resolutions, Burke
said:
The proposition is peace; not peace through the medium
of war; not peace to be hunted through the labyrinth of intricate
and endless negotiations j not peace to arise out of universal
discord, fomented from principle, in all parts of the Empire;
312 The Administration of Dependencies
not peace^ to depend upon the juridical determinations of perplex-
ing questions y or the precise marking of the shadozvy boundaries of
a complex government. It is simple peace, sought in its natural
course, and in its ordinary haunts. It is peace sought in the
spirit of peace, and laid in principles purely pacific. I pro-
pose, by removing the ground of difference, and by restoring
the former unsuspecting confidence in the Mother Country, to
give a permanent satisfaction to your people, and (far from a
principle of ruling by discord) to recover them to each othert
in the same act, and by the bond of the very same interest
which reconciles them to the British Government.
• ••••• • •
Perhaps, Sir, I am mistaken in my idea of an Empire, as dis-
tinguished from a single State or Kingdom. But my idea of it is
this: that an Empire is the aggregate of many States, under
one common Head; whether this Head be a monarch, or a
presiding republic. It does, in such constitutions, frequently
happen (and nothing but the dismal, cold, dead uniformity of
servitude can prevent its happening) that the subordinate
parts have many local privileges and immunities. Between
these privileges and the supreme common authority, the line
may be extremely nice. Of course disputes — often, too, very
bitter disputes — and much ill blood, will arise. But though
every privilege is an exemption (in the case) from the ordinary
exercise of the supreme authority, it is no denial of it. The
claim of a privilege seems rather, ex vi termini^ to imply a
superior power; for to talk of the privileges of a State or of
a person, who has no superior, is hardly any better than
speaking nonsense. Now, in such unfortunate quarrels,
among the component parts of a great political union of com-
munities, I can scarcely conceive anything more completely
imprudent, than for the Head of the Empire to insist, that if
any privilege is pleaded against his will, or his acts, his whole
authority is denied, instantly to proclaim rebellion, to beat to
arms, and to put the offending Province under the ban. Will
not this, Sir, very soon teach the Provinces to make no dis-
tinctions on their part ? Will it not teach them that the
Government, against which a claim of liberty is tantamount
British Propositions, 1775 313
to high treason, is a Government to which submission is
equivalent to slavery ? It may not always be quite convenient
to impress dependent communities with such an idea.
** We are, indeed, in all disputes with the Colonies, by the
necessity of things, the judge. It is true. Sir. But I con-
fess that the character of judge in my own cause is a thing
that frightens me. Instead of filling me with pride, I am ex-
ceedingly humbled by it. I cannot proceed with a stern,
assured, judicial confidence, until I find myself in something
more like a judicial character. I must have these hesitations
as long as I am compelled to recollect, that, in my little reading
upon such contests as these, the sense of mankind has at least
as often decided against the superior as the subordinate power.
My idea, without considering whether we yield as matter of
right, or grant as matter of favor, is to admit the people of our
Colonies into an interest in the Constitution ; and by record-
ing that admission in the Journals of Parliament, to give them
as strong an assurance as the nature of the thing will admit,
that we mean forever to adhere to that solemn declaration of
systematic indulgence.
Burke's resolutions were apparently based on the
theory that the British Constitution did not "extend to
the Colonies," — to use a modern expression. He appar-
ently proposed to solve the difficulty by "extending the
Constitution" to them for some purposes and to some
extent. The people of the Colonies were to be "ad-
mitted into an interest in the Constitution," as if they
had never had any interest in it before. When he dis-
tinguished his plan of settlement from those which aimed
at a peace which was "to depend upon the juridical deter-
mination of perplexing questions, or the precise marking
of the shadowy boundaries of a complex government,"
or which was "to be hunted through a labyrinth of
intricate and endless negotiations," he was apparently
disparaging the efforts of Dickinson and Lord Chatham,
314 The Administration of Dependencies
as well as of many others, who were attempting to work
out the just relationship between Great Britain and the
Colonies as a problem of political science and of the
general public law.
Those, however, who were contending that the Con-
stitution of the Empire could only be ascertained by
"the juridical determination of perplexing questions
and the precise marking of the shadowy boundaries of a
complex government " and by "intricate negotiations,**
were necessarily and inevitably acting on the theory that
the people of the Colonies had always been "admitted
to an interest in the Constitution'* since the inception
of the Colonies, in the sense that the British Constitution
had always been in force in the Colonies except so far as
it was rendered inapplicable by the local circumstances
and conditions. It was this fact, and this fact only, which
made the government of the Empire " complex" and
the questions of its government " perplexing," which
made the boundaries of its government " shadowy,"
which made it impossible that these boundaries should be
marked except as the result of " intricate and endless
negotiations ** and the " juridical determination " of the
questions which arose. Burke saw that the Constitution
of the British Empire was based on different principles
from the Constitution of Great Britain, and that what
was true in this case was true in every Empire founded
on just principles, but if one were to judge entirely from
the expression "to admit the Colonies into an interest in
the Constitution," it would appear that he had not seen
that the Constitution of the British Empire had always
and necessarily been related to the British Constitution
so that the Colonies had an " interest " in it, ever since
the British Empire was established.
Perhaps, however, it is unjust to Burke to lay too
much stress on the word "admit, "since, in the course of
his speech, he used expressions which seem necessarily
British Propositions, 1775 315
to imply that he regarded the Colonies as always having
had an interest, in the nature of things, in the British Con-
stitution. If, in all "disputes with the Colonies" Great
Britain "by the necessity of things" was a "judge" sit-
ting as "a judge in its own cause," its action necessarily
was directed toward "the juridical determination of per-
plexing questions and the precise marking of the shadowy
boundaries of a complex government," and such deter-
mination could only be made as the result of "intricate
and endless negotiations." It is possible that he used
the word "admit " rather with the purpose of cutting off
discussion concerning the existing relationship than as
implying that, up to that time, the people of the Colonies
had had no interest in the British Constitution.
The last attempt which was made towards a concilia-
tion with the Colonies was that of David Hartley, who,
on March 27, 1775, introduced resolutions for this pur-
pose in the House of Commons, the first of which was as
follows :
That an humble address be presented to his Majesty, that
he will be graciously pleased to give orders that letters of
requisition be written to the several Provinces of his Majesty's
Colonies and Plantations in America, to make provision for
the purpose of defending, protecting and securing the said
Colonies and Plantations; and that his Majesty will be pleased
to order all such addresses as he shall receive in answer to
the aforesaid letters of requisition to be laid before this House.
Hartley's other resolutions provided for the suspension,
during a period of three years, of the Acts "for Blocking
up the Port of Boston," "for the Impartial Administra-
tion of Justice," and "for Regulating the Government of
the Province of Massachusetts Bay."
A form of letter of requisition was made a part of the
first resolution, which, had it been adopted by Parlia-
ment and followed by the King, would have contained
3i6 The Administration of Dependencies
an offer to the Colonies, in case they contributed equit-
ably to the Imperial defence by money or troops and
made "an ostensible contribution to the general supply/'
that the King would recommend to Parliament a relaxa-
tion of the restrictions on their trade, and would allow
them "to spread into the continent of America.**
Hartley's idea, like Burke's, seems to have been to
accomplish exactly the same purpose as Lord Chatham
had aimed at in his Bill, but to avoid an express defini-
tion of the power of Great Britain or of Parliament or of
the King, leaving it open for definition by events as they
should arise in the future. His prime object was to se-
cure the recognition by the Colonies of some power to be
exercised by Parliament, leaving it free to Great Britain
to claim that its power was more than that exercised, in
case it should be found necessary in the future to exercise
greater power.
In explaining his resolutions. Hartley said :
My motion originates in the House of Commons, to desire
the King, as the Executive Magistrate, to put their plan into
effect. If the power of making requisitions to the Colonies
is not in the King, my motion is to give the authority and
sanction of Parliament to this measure. It is so far from be-
ing my proposition, to enable the Crown to raise what supply
it can in America, independent of Parliament, that my motion
is the very first which has ever had in contemplation to lay a
Parliamentary control upon that power, and to require that
all answers from America shall be laid before this House for
the very purpose of controlling that power in the Crown. I
have so doubly guarded that point that my motion is not even
for the Crown to demand a supply from America, but for ser-
vices to be performed in America, for the defence, security
and protection of the Colonies themselves.
Hartley's resolutions met the same fate as Lord Chat-
ham's and Burke's. Neither House of Parliament would
British Propositions, 1775 317
admit, directly or indirectly, that the power of Parliament
over the Colonies was anything less than a power to bind
them "in all cases whatsoever."
Dickinson, Lord Chatham, and Burke all concurred in
the conclusion that the Imperial State in the Federal
Empire must, from the necessity of the case, adjudicate
the rights of the Member-States, and incidentally, also,
the limits of its own jurisdiction. Dickinson said, in his
New Essay ^ that Parliament was * * the supreme Legislature
and full representative of the parent State, and the only
judge between her and her children in commercial inter-
ests, which the nature of the case, in the progress of their
growth, admitted." Lord Chatham, in his Bill, called
the power of Parliament, sitting as the Parliament of the
Empire, a "supreme legislative authority and superin-
tending power" ; and Burke, after having described the
power of the Imperial Parliament as a power of "provi-
dent and beneficent superintendence" in his speech on
American Taxation, said in his speech on Conciliation:
" We are, indeed, in all disputes with the Colonies, by
the necessity of the case, the judge."
Hartley, too, was enthusiastically in favor of Lord
Chatham's plan of settlement, if it could have been
brought about, and brought forward his resolutions in
the hope of accomplishing the same result at which Lord
Chatham was aiming.
It may, therefore, be said that every British plan of
settlement, proposed in 1775, aimed at the restoration
or the declaration of the Federal Empire.
CHAPTER XVIII
THE FINAL ISSUE, 1 775— 1 776
LORD CHATHAM'S BiU, hy describing thepoMt
of the State of Great Britain in the Empires
a power of "superintendence,** inevitably pftdfi*
tated a second debate, in the second session of Congies,
which began on May 10, 1775, concerning the cfaandcr
and extent of the power of the Imperial State in the £»•
pire. Lord North's Proposals, by providing for a Piixfc
mentary determination, having in some respects tite foia
of an adjudication, of the amounts of the contributkos
of the respective Colonies to the Imperial defence (ai
hence providing, by necessary implication, for Pirfa-
mentary adjudication of all the rights of the Colonies),
inevitably precipitated a second debate concerning dK
respective functions of the King and the Parliament in
the Empire. These were the two fundamental questions,
if the British Empire was a political organism.
Before reaching the consideration of these questions,
however, there had to be a second discussion and scttte-
ment of the preh'minary question — whether the British
Empire was a political organism, or State, from whidi
withdrawal of any of the Member-States was impossiUe
except upon dissolution by mutual consent, or whether
it was a mere Alliance of States, from which one or moft
might secede at any time.
It has already been noticed that, at the first session of
the Congress, this question had been strenuously debated
and that, as the result, the majority had been in favor of
the F^ederal-Imperialist view, in which it was necessariij
318
The Final Issue, 1 775-1 776 319
implied that the British Empire was a State. In the
recess between the first and the second sessions of
Congress, however, the anti-Imperialist or Secessionist
minority had shown themselves quite unreconciled to the
view of the majority. The most pronounced anti-Im-
perialist utterance of John Adams was made during this
recess, shortly before the news of Lord Chatham's Bill
could have reached America. When that news arrived,
it evidently cut the ground from under the feet of this
minority. Lord Chatham's Bill was virtually an adjudica-
tion of the whole dispute between the Colonies and Great
Britain, by the one man in whom the Colonies possessed
absolute confidence, and who was recognized as the
greatest statesman of his day.
Jefferson has borne witness to the profound effect which
the Bill had upon the thought of America. On May 7,
1775, he wrote to Dr. Wm. Small:
When I saw Lord Chatham's Bill, I entertained high hope
that a reconciliation could have been brought about. The
difference between his terms and those offered by Congress
might have been accommodated, if entered on by both parties
with a disposition to accommodate.
In the Address to Governor Dunmore from the House
of Burgesses of Virginia, of June 12, 1775, — in answer to
Lord North's Proposals, — which Jefferson, in his Autobu
ography, says that he drafted, it was said :
There was, indeed, a plan of accommodation offered in
Parliament which, though not entirely equal to the terms we
had a right to ask, yet differed but in a few points from what
the General Congress had held out. Had Parliament been
disposed sincerely, as we are, to bring about a reconciliation,
reasonable men had hoped that by meeting us on this ground,
something might have been done. Lord Chatham's Bill on the
one part, and the terms of Congress on the other, would have
320 The Administration of Dependencies
formed a basis for negotiations which a spirit of accommoda-
tion on both sides might, perhaps, have reconciled. It came
recommended, too, from one whose successful experience in
the art of government should have insured it some attention
from those to whom it was intended. He had shown to the
world that Great Britain, with her Colonies united under a just
and honest government, formed a power which might bid de^
fiance to the most potent enemies.
Upon the reassembling of Congress for the second
session, there were two elements of the situation which
made for unanimity, — the appreciation of the fact that
the Colonies could not hope to succeed if they were
divided among themselves, and the influence of Lord
Chatham's opinion in favor of the Federal-Imperialist
majority. The result was a partial yielding on both sides,
which brought the anti-Imperialists into substantial ac-
cord with the Federal-Imperialists, and which led the
latter to take an enlarged and more correct conception of
the character of the Federal Empire. The circumstances
of the yielding of the anti-Imperialist party to the general
views of the Federal-Imperialists are narrated by Jeffer-
son and were as follows:
On June 23, 1775, Congress appointed a committee to
prepare a Declaration on Taking up Arms. The first
draft, prepared by John Rutledge, was unsatisfactory to
Congress, and the report was recommitted and Jeflferson
and Dickinson added to the committee. Jefferson pre-
pared a draft, but it was not satisfactory to the commit-
tee, and finally, by their request, Dickinson wrote a
draft incorporating some parts of Jefferson's, which was
accepted by the committee and by Congress. Jefferson
in his Autobiography says of his draft:
It was too strong for Mr. Dickinson. He still retained the
hope of reconciliation with the Mother Country, and was un-
willing it should be lessened by offensive statements. He was
The Final Issue, 1 775-1 776 321
so honest a man, and so able a one, that he was greatly in-
dulged even by those who could not feel his scruples. We
therefore requested him to take the paper, and put it in a form
he could approve.
Jeflferson, in his draft, said :
Our forefathers established civil societies with various forms
of constitution. To continue their connection with the friends
whom they had left, they arranged themselves by charters of
compact under the same common King^ who thus completed their
powers of full and perfect legislation^ and became the link of union
between the several parts of the Empire. Some occasional as-
sumptions of power by the Parliament of Great Britain^ however
unacknowledged by the constitution of our Governments, were
finally acquiesced in through warmth of affection.
Dickinson appended to Jefferson's draft a query whether
**it might not be proper to take notice of Lord Chatham's
Plan, mentioning his great abilities."
In the Declaration drafted by Dickinson, as finally
adopted by Congress, it was said :
Our forefathers . . . efifected settlements in the dis-
tant and inhospitable wilds of America, then filled with
numerous and warlike nations of barbarians. Societies or
Governments, vested with perfect Legislatures, were formed
under Charters from the Crown, and an harmonious inter-
course was established between the Colonies and the Kingdom
from ivhich they derived their origin, . . . Towards the
close of the late war, it pleased our Sovereign to make a
change in his counsels. From that moment the affairs of the
British Empire began to fall into confusion. . . . Parlia-
ment was influenced to adopt the pernicious project [of sub-
duing and plundering the Colonies], and, assuming a new
t>ower over them, have in the course of eleven years given
such decisive specimens of the spirit and consequences at-
tending this power as to leave no doubt concerning the effects
of acquiescence under it. . . .
81
— Ti .-;? rtmrrjri : .:1c:: .iar^. uid u: Air.i
•- ::;? .i:=^ ini^ :n3r tins ^inversion of
-,#*-.i.:ir5 T-- -iir j^::±rsi ^rirrcipies of the
«i-r- *»:j".:rr2ii- l ircicsd 'Tan^ occurred in tie
:•• :!;e ? :;ajnA- -IrriperTaiEsts, The anti-lnipcriali=:
r -ri/r::!!- riiit-in 'JZ2S^ f die British Empire was 2 r<'ili:-
:^i :r7:inx.-=m. ]r iciire. inder i Constitution^ the yar^
:'■ Tiornr' MntrTbutians 31 anv aart of the State r: rx
1«?>nc.i irii vi::.*re ji rhe whcie State could ace be s-
:.:rotii.i 3»it u' :ae oiarrers 3ver ^riich the Inaperial
!« :iie I^ntru iivemment. had power, and the
TTio^rlaii-^rs liad -rrcentlv '^^ic^vi unable to
0'"0'"»<i':.'".n. T'.ie inri-Imnerraiista had evidentlr ir-
'»^''.*.-:. ilsr, :l:^r if r:ie 2.-:::.:n Emoire was a State co— -
•',*'>'--^A '^ .^.r.ir.*s. :.ier* vis no reason why the subordirMTe
Vf^r v^r-S'T^ites siio'-ild ^ivt unite or federate among tfccc-
-'^: /*> in ir.v viv -zr inconsistent with their subordisi-
" ^-. '.^ t'.i"; Imseriil icate which might be best in their
VI''. ■r^.p:r*t?,^^\ ar. i the Federal-Imperialists had evidently
^^..•yr.^^A to thi^ proposition. When this point was
j^^^h^/l, it evidently became clear to both parties that
♦h'- ft^l qu^j^tion at issue was whether the British Empire
ff^ti n f'Vd^ral Empire or a Unitary State, and that no sct-
M'rri/nt v/a^ possible except one which went to the root
'»f M»'- m;iftcr and settled that question once for all.
Hi^if tlij:; change of view on the part of the Federal-
Imp' riali«;tR regarding the matter of the money contri-
The Final Issue, 1 775-1 776 323
buttons of the Colonies to the Imperial defence and
welfare did, in fact, occur, and that it resulted in a sub*
stantial unanimity of sentiment in Congress that Great
Britain, as the Imperial State, ought to have, under a
just and proper Constitution of the Empire, a superin-
tendence over this matter, can be affirmed on no less
authority than that of Jefferson and Madison. Writing,
at the request of M. Soul^s, on September 13, 1786, in
criticism of the proof sheets of his Histoire des Troubles
de rAmdrique Anglaise, Jefferson, said, speaking of the
issues on which the American Revolution was fought :
Dickinson acknowledged, in his Farmer's Letters^ that [Par-
liament] could levy duties, internal or external, payable in
Great Britain or in the States. He only required that these
duties should be bona fide for the regulation of commerce, and
not to raise a solid revenue. He admitted that they might
control our commerce, but not tax us. This mysterious sys-
tem took for a moment in America as well as in Europe. But
sounder heads saw in the first moment that he who could put
down the loom could stop the spinning-wheel, and he who
could stop the spinning-wheel could tie the hand which turned
it. They saw that this flimsy fabric could not be supported.
AVho were to be judges whether duties were imposed with a
view to burthen and suppress a branch of manufacture or to
raise a revenue ? If either party, exclusively of the other, it
was plain where that would end. If both parties, it was plain
where that would end also. They saw, therefore, no clue to
lead them out of their difficulties but reason and right. They
dared to follow them, assured that they alone could lead to de-
fensible ground. The first elements of reason showed that the
members of Parliament could have no power which the people
of the several counties had not — that these had naturally a
power over their own farms, and collectively over all England
— that if they had any over countries out of England, it must
be founded on compact or force. No compact could be shown,
and neither party chose to bottom their pretensions on force.
324 The Administration of Dependencies
It was objected that this annihilated the Navigation Act.
True, it does. The Navigation Act, therefore, becomes a
proper subject of treaty between the two nations. Or, if Great
Brilain does not choose to have its basis questioned, let us go
on as we have done. Let no new shackles be imposed, and we
will continue to submit to the old. We will consider the re-
strictions on our commerce now actually existing, as compen*
sations yielded by us for the protections and privileges we
actually enjoy, only trusting that if Great Britain, on a revisal
of these restrictions, is sensible that some of them are useless
to her and oppressive to us, she will repeal them. But on this
she shall be free. Place us in the condition we were when the
King came to the throne, let us rest so, and we will be satis-
fied. This was the ground on which all the States very soon
found themselves rallied, and there was no other which could
be defended.
Madison, speaking reminiscently in the Convention
for framing the Constitution of the United States, <hi
August 13, 1787, said:
When the contest was first opened with Great Britain, their
power to regulate trade was admitted, their power to raise re-
venue rejected. An accurate investigation of the subject,
afterwards, proved that no line could be drawn between the
two cases.
And in a letter to Jefferson of October 24, 1787, Madi-
son said :
How long has it taken to fix, and how imperfectly is yet
fixed, the legislative power of corporations, though that power
is subordinate in the most complete manner? The line of dis-
tinction between the power of regulating trade and that of
drawing revenue from it, which was once considered the bar-
rier of our liberties, was found, on fair discussion^ to be
absolutely untenable.
The documents which evidenced the change in the
views of Congress on these three different subjects,—
The Final Issue, 1 775-1 776 325
namely, the right of the Imperial State, as the Central
Government, to adjudicate the contributions to the Im-
perial defence and welfare ; the right of the Colonies, as
subordinate Member-States, to federate or unite ; and the
necessity for a general settlement which should finally
determine the character of the Empire as a federal organ-
ism, as opposed to a settlement relating solely to the ex-
isting grievances, — were the second Address to the King,
of July 8, drafted by Dickinson, as chairman of the com-
mittee, the second Address to the People of Great
Britain, of the same date, prepared by a committee of
which Richard Henry Lee was chairman, and the reso-
lutions on Lord North's Proposals, of July 31, pcepared
by a committee of which Franklin was chairman, and
Jefferson, John Adams, and Richard Henry Lee mem-
bers.
In the Address to the King, the relationship between
Great Britain and the Colonies was called "the Union
between the Mother Country and the Colonies," Great
Britain was described as "the Sovereign and Parent
State," and the Parliament was spoken of as "that
august Legislature, the Parliament."
In this Address, the Congress said :
Attached to your Majesty's person, family and government
with all devotion that principle and a£fection can inspire, con-
nected with Great Britain by the strongest ties that can unite
societies, and deploring every event that tends in any way to
weaken them, we solemnly assure your Majesty that we not
only most ardently desire the former harmony between her and
these Colonies may be restored, but that a concord may be es-
tablished between them upon so firm a basis as to perpetuate
its blessings, uninterrupted by any future dissensions, to suc-
ceeding generations in both countries. . . .
We beg leave to assure your Majesty that notwithstanding
the sufferings of your loyal colonists during the course of this
present controversy, our breasts retain too tender a regard for
326 The Administration of Dependencies
the Kingdom from which we derive our origin^ to request such
a reconciliation as might in any manner be inconsistent with
her dignity and welfare. These, related as we are to her,
honor and duty, as well as inclination, induce us to support
and advance ; and the apprehensions that now oppress oar
hearts with unspeakable grief being once removed, your Ma-
jesty will find your faithful subjects on this continent ready
and willing, at all times, as they have ever been, with their
lives and fortunes, to maintain the rights and interests of your
Majesty and of our Mother Country.
We therefore beseech your Majesty that your royal authority
and influence may be graciously interposed to procure us relief
from our afflicting fears and jealousies occasioned by the sys-
tem [of statutes and regulations adopted for the administration
of the Colonies] before mentioned, and to settle peace through
every part of your dominions, with all humility submitting to
your Majesty's wise consideration whether it may not be ex-
pedient for facilitating those important purposes that your
Majesty may be pleased to direct some mode by which the
united applications of your faithful colonists to the throne, in
pursuance of their common counsels, may be improved into a
happy and permanent reconciliation. . . .
For by such arrangements as your Majesty's wisdom can
form, for collecting the united sense of your American people,
we are convinced your Majesty would receive . . . satis-
factory proofs of the disposition of the colonists towards their
Sovereign and Parent State.
In the Address to the People of Great Britain, it was
said:
It is alleged that we contribute nothing to the common de-
fence. To this we answer, that the advantages which Great
Britain receives from the monopoly of our trade far exceed our
proportion of the expense necessary for that purpose. But
should these advantages be inadequate thereto, Ut the restrit-
tions on our trade be remoz^ed^ and we will cheerfully cantrihuie
such proportion when constitutionally required.
A plan of accommodation (as it has been absurdly called)
The Final Issue, 1 775-1 776 327
has been proposed by your Ministers to our respective
Assemblies. . . . What is submitted to our consider-
ation ? We contend for the disposal of our property.
We are told that our demand is unreasonable, that our
Assemblies may indeed collect our money, but thai they
must at the same time offer ^ not what your exigencies or ours
require^ but so much as shall be deemed sufficient to satisfy the
desires of a Minister and enable him to provide for favorites
and dependents. A recurrence to your own Treasury will
convince you how little of the money already extorted from us
has been applied to the relief of your burdens. To suppose
that we would thus grasp the shadow and give up the sub-
stance, is adding insult to injuries.
We have nevertheless again presented an humble and duti-
ful petition to our Sovereign, and to remove every imputation
of obstinacy, have requested his Majesty to direct some mode by
which the united applications of his faithful colonists may be im-
proved into a happy and permanent reconciliation. We are willing
to treat on such terms as can alone render an accommodation
lasting,
• ••••••a
Yet conclude not from this that we propose to surrender our
property into the hands of your Ministry, or vest your Parlia-
ment with a power which may terminate in our destruction.
In the resolutions of Congress of July 31, 1775,
relating to Lord North's Proposals, drafted by Jefferson,
it was said :
We think the attempt unnecessary to raise upon us, by force
or by threats, our proportional contributions to the common
defence, when all know, and themselves acknowledge, we have
fully contributed whenever called upon to do so in the charac-
ter of freemen.
We are of opinion that it is not just that the Colonies should be
required to oblige themselves to other contributions while Great
Britain possesses a monopoly of their trade. This, of itself, lays
them under heavy contribution. To demand, therefore, ad-
ditional aids in the form of a tax, is to demand the double of
328 The Administration of Dependencies
their equal proportion. If we are to contrihute equally with the
other parts of the Empire^ let us, equally with tfiem^ enjoy fret
commerce with the whole world. But while the restrictions on
our trade shut to us the resources of wealth, is it just that we
should bear all other burthens equally with those to whom
every resource is open?
We conceive that the British Parliament has no right to in-
termeddle with our provisions for the support of civil govern-
ment or administration of justice. The provisions we have
made are such as please ourselves and are agreeable to our
own circumstances. They answer the substantial purposes of
government and of justice; and other purposes than these
should not be answered. We do not mean that our people
shall be burthened with oppressive taxes, to provide sinecures
for the idle or wicked, under color of providing for a civil list
While Parliament pursue their plan of civil government within
their own jurisdiction, we also hope to pursue ours tvitAaut moles-
tation.
We are of opinion the proposition is altogether unsatis-
factory because it imports only a suspension of the mode, not
a renunciation of the pretended right to tax us ; and because
it does not propose to repeal the several Acts of Parliament
[describing them]. Nor do they renounce the penver of sus-
pending our own Legislatures, and of legislating for ui
themselves in all cases whatsoever. On the contrary, to shoir
that they mean no discontinuance of injury, they pass Acts, at
the very time of holding out this proposition, for restraining
the commerce and fisheries of the Provinces of New England,
and for interdicting the trade of other Colonies with foreign
nations and with each other. This proves unequivocally they
mean not to relinquish the exercise of indiscriminate legislation
over us.
Upon the whole, this proposition seems to have been held
up to the world, to deceive it into a belief that there was noth-
ing in dispute between us but the mode of lezrying taxes;
and that the Parliament having now been so good as to give
up this, the Colonies are unreasonable if not perfectly satisfied:
whereas in truth, our adversaries still claim a right of demandr
The Final Issue, 1 775-1 776 329
ing ad libitum^ and of taxing us themselves to the full amount
of their demand if we do not comply with it. This leaves us
without anything we can call property. Bui what is of more
importance^ and what in this proposal they keep out of sights as if
no such point was now in contest between uSy they claim a right to
alter our charters and established laws^ and leave us without any
security for our lives or liberties.
It is noticeable that the method adopted by the Con-
gress for modifying the terms of the ultimatum so as to
conform to the change of sentiment was exactly the same
as the method adopted in the original transmission of the
ultimatum. The first Address to the King had not ex-
pressly claimed that Great Britain had not, under the
Constitution of the Empire, any power whatever over the
contributions of the Colonies to the Imperial defence and
welfare. It had simply claimed that Acts of Parliament
taxing the Colonies, without previous adjudication and
without any hearing of them, and under a claim of Par-
liament to legislate so as to bind the Colonies in all cases
whatsoever, were violations of the Constitution of the
Empire. The Colonies had not in the least altered their
views in this respect, but they had so expressed the first
Address that it gave the impression that their contention
was that the King of Great Britain had orvly the power to
annul these unconstitutional Acts of Parliament, and had
not the power of himself, in his official capacity as Dis-
poser of the Empire, to make rules and regulations in ex-
ecution of his adjudications concerning the rights of the
Imperial State and the Colonies, as Member-States, under
the Constitution of the Empire. The second Address was
necessary to make it clear that the Colonies were not de-
nying the whole power of the State of Great Britain, as
the Central Government of the Empire, over their contri-
butions to the Imperial defence and welfare, and that they
admitted that that State had a conditional and limited
330 The Administration of Dependencies
power in that respect, as in all others, which, according
to their view (though they did not insist upon their view if
the King thought otherwise and could arrange for proper
and constitutional action by Parliament), should be ex-
ercised by the King in his official capacity — in which he
would necessarily act under the advice of a suitable ex-
pert tribunal appointed by him — by making and causing
to be executed the needful rules and regulations.
The prayer of the Address to the King was accordingly
enlarged so as to ask the King, as Disposer of the Em-
pire, not merely to give negative relief by way of injunc-
tion, but to give affirmative relief by decreeing ihc
specific performance of the contract between the parties
and also to specifically perform it, making all needful
rules and regulations for this purpose, as the expert rep-
resentative of Great Britain, acting as the Imperial State.
He was thus asked to act as "judge in his own cause,"
to use the words of Burke, and to conform his action as
party litigant to his own decision as judge. Such a pro-
posal that the King should exercise inconsistent functions
was not a novel idea. The King of Great Britain, as does
the Chief Executive of every State, necessarily executed
every day a great variety of inconsistent functions. The
whole conception of the King, as the Crown, was of the
King exercising a great variety of inconsistent functions
and harmonizing them all towards a common end. It
was this inherent inconsistency of his various functions
which required the functions to be distributed to expert
officers and tribunals, whose actions the King, advised by
men most expert in the science of government, harmo-
nized and directed.
In this Address, the Congress took occasion to declare
themselves a constitutional body. The King was asked
**to direct some mode by which the united applications
of [his] faithful colonists to the throne, in pursuance of
[their] common counsels, [might] be improved into a
The Final Issues, 1 775-1 776 331
happy and permanent reconciliation," and to make **such
arrangements as [his] Majesty's wisdom can form, for col-
lecting the united sense of [his] American people." If
the Congress was a constitutional body, it could only be
such on the theory that the Colonies had a right, under
the Constitution of the Empire, to unite or federate as
their interests might require, provided no injury was done
to the whole Empire thereby, and provided the union or
federation was not on terms inconsistent with the per-
formance by the Imperial State of its proper functions in
the Empire. This was a following out of the idea of
Lord Chatham, whose Bill had provided for the recogni-
tion of the Congress as a permanent constitutional body.
The King was by this second Address petitioned not
merely to "interpose" his "royal authority and influ-
ence " to procure the Colonies "relief," and to "restore
harmony," but also to "establish" a permanent "con-
cord," and, for this purpose, to "direct a mode" of action
which would lead to a "happy and permanent reconcilia-
tion." The Congress had realized that a settlement
which purported merely to restore the situation as it ex-
isted at the close of the war in 1763 would be ineffectual,
since the discussion had developed three distinct and
different views concerning the character of the political
relationship which existed in 1763 between Great Britain
and the Colonies, — the British view, the American Fed-
eral-Imperialist view, and the American anti-Imperialist
view. This demand of Congress was also an adoption of
Lord Chatham's opinion of the necessities of the political
situation. He had shown, by his Bill, that he regarded
as useless a settlement which did not expressly declare
the power of Great Britain to be a "superintending
power" accompanied by the "supreme legislative au-
thority" necessary to execute it, thus recognizing the
statehood of the Colonies and, in effect, declaring the
British Federal Empire.
332 The Administration of Dependencies
The change of view in Congress concerning^ the contri-
butions of the Colonies to the Imperial defence and wel-
fare was expressed in the second Address to the People
of Great Britain — Parliamentary taxation of the people of
the Colonies being carefully distinguished from an ap-
portionment of the shares of the expenditure necessary
for the Imperial defence and welfare among the States of
the Empire, adjudicated by the King. The power of
Parliament, so long as it persisted in its claim of uncon-
ditional and unlimited power, was denied, as was also the
power of the Ministry — they being regarded as officiab
who were nominally the King's advisers, but who were
actually under the dictation of the House of Commons,
which was persistent in the claim of unconditional and
unlimited power for Parliament. The statement that,
upon withdrawal by Parliament of its restrictions upon
the trade of the Colonies, the Colonies would "cheerfully
contribute their necessary proportion to the common de-
fence when constitutionally required " was followed by a
statement that *'to remove every imputation of obsti-
nacy," they had petitioned the King to suggest a plan
of "permanent reconciliation," adding that they were
** willing to treat on such terms as can alone render an
accommodation lasting."
In the resolution concerning Lord North's Proposals
occurred a plain statement by the Colonies that the
British Parliament could exercise power, under the Con-
stitution of the Empire, only within a certain sphere of
jurisdiction — in other words that the Acts of the British
Parliament relating to the Colonies were to be measured
by the Constitution of the Empire, and, if in excess of the
powers granted to Parliament by that Constitution, were
null and void. The statement that Parliament must
** pursue their plan of civil government within their own
jurisdiction" unmistakably fixed the character of the pro-
ceedings of the Congress as a suit in equity brought by
The Final Issue, 1 775-1 776 333
Member-States of the Federal Empire, against the Im-
perial State, as a Member-State, before the King of Great
Britain, as ex officio the Disposer of the Empire, having
authority to finally interpret, adjudicate, and execute the
unwritten Constitution of the Empire, through an expert
tribunal as his adviser, and to finally determine the con-
stitutionality of any act of any Member-State, by virtue
of power and authority granted to him by the people of
the whole Empire.
The proposition of the Congress that in case Parlia-
ment would repeal the laws taxing the Colonies and
would remove or decrease the restrictions on their trade,
they would contribute directly to the Imperial defence a
sum equal to the amount so saved to them, was a test-
proposition. Had Parliament accepted it, the accept-
ance would have been an admission that the Colonies
were Member-States of the Empire, which were already
paying indirectly to the State of Great Britain for its ser-
vices as the Protector and Disposer of the Empire a sum
which both parties agreed to be fair and just, under a
contract, or Constitution of the Empire, which provided
that Great Britain should perform these services, and
should be paid therefor a reasonable compensation. The
proposition, when accepted, would have been a contract,
operating as an amendment to the original contract, or
Constitution of the Empire, and would have been, by
necessary implication, a recognition of the British Em-
pire as a federal organism and a State, existing under a
Constitution, supreme for Imperial purposes over the Con-
stitution of the State of Great Britain. Had this proposi-
tion been accepted. Great Britain could not logically have
refused to have the unwritten Constitution of the Empire
interpreted by the King, as the Head of the expert part
of its own Government, in case it disagreed with the
Colonies concerning the proper interpretation, and the
Colonies would have accomplished the real result at
334 The Administration of Dependencies
which they were aiming, — as Congress stated in their reso-
lutions concerning Lord North's Proposals, — namely, an
admission that Great Britain had no right ''to alter our
charters and established laws, and leave us without any
security for our lives and liberties."
That both parties in Congress were united in the hope
that these last Addresses might lead to a reconciliation is
shown by two letters of Jefferson, the latter written a
month after news of the rejection of the second Address
to the King, called the "Olive Branch" petition, reached
America, but before the rejection by Parliament of ail
plans for conciliation.
In a letter to John Randolph, written August 25,
1775, he said:
I am sincerely one of those who wish for a reunion with
their Parent Country, and would rather be in dtpendenu #•
Great Britain^ properly limited^ than on any other nation od
earth, or on no nation. But I am one of those who, rather
than submit to the rights of legislating for us, assumed by the
British Parliament, and which late experience has shown tktf
will so cruelly exercise^ would lend my hand to sink the whole
Island in the ocean.
On November 29, 1775, Jefferson again wrote to Ran-
dolph :
Believe me, dear Sir, there is not in the British Empire a
man who more cordially loves a union with Great Britain than
I do. But, by the God that made me, I will cease to exist
before I yield to a connection on such terms as the British Parlis-
ment propose ; and in this, I think, I speak the sentiments of
America.
It was not " dependence," therefore, to which Jeffer-
son, in 1775, objected, but the "cruel exercise " of power
by Great Britain, claimed by it to be " legislative," and
The Final Issue, 1 775-1 776 335
the "terms proposed by the British Parliament," for the
continuance of the connection.
Burke, on November i6, during the debate on the Bill
to Prohibit Trade and Intercourse with America, proposed
by the Ministry, renewed his previous measures for con-
ciliation, by introducing a Bill intended to restore the
Colonies to the situation in which they were at the close
of the war in 1763. The Bill was immediately rejected.
On December 7, 1775, Hartley, in the House of Com-
mons, offered resolutions providing for the acceptance of
the proposition of Congress that the Colonies should con-
tribute to the Imperial defence in proportion as the re-
strictions on their trade were removed, provided the Acts
taxing them were repealed, adding to them a proviso that
the several Colonial Legislatures should, as a prerequisite
to the repeal of the Acts of Parliament taxing the Colo-
nies, register an Act of Parliament to the effect that
** every slave in North America should be entitled to his
trial by jury in all criminal cases,'' as an evidence of the
submission of the Colonies to the exercise of some degree
of power by Parliament of its own mere will, — his purpose
evidently being to counteract in this way the implication
which would have arisen from an unqualified acceptance
of the proposition of Congress, that the Empire was a
Federal Empire, and thus to avoid a definition of the
power of Parliament. In his speech in support of his
resolutions he said :
The House having heard this most dutiful and affectionate
petition to the King from their fellow-subjects in America,
humbly supplicating his Majesty to become the mediator of
peace between them and their Parent State, I hope that this,
added to all the remembrance of our former friendships, to
all the ties of consanguinity and derivation from one common
stock, by which we claim a joint inheritance and equal right
to peace, liberty and safety, will carry some favorable influ-
ence upon the heart of this House. . . .
336 The Administration of Dependencies
In these circumstances, it should seem well becoming the
magnanimity and moderation of Parliament to endeavor to
point out some definite mode and terms of reconciliation, in
compliance with the prayer of that petition, pursuing the same
spirit of peace which breathes through every line of it, and as
a merited return for that confidential and respectful deference,
by which they refer implicitly to his Majesty's wisdom and
justice the mode and terms of accommodation, declaring in
the most unreserved manner that, notwithstanding all their
sufferings, they retain too tender a regard for the Kingdom
from which they derive their origin, to request such a recon-
ciliation as might in any manner be inconsistent with her dig-
nity or welfare, and that his Majesty will find his faithful
subjects in America ready, at all times, as they have ever been,
with their lives and fortunes, to assert and maintain the rights
and interests of his Majesty and of their Mother Country.
In the course of his speech, he made the following plea
in favor of accepting the plan proposed by Congress,
which, though based wholly on expediency, would have
been equally pertinent and true if he had based it upon
the requirements of justice, in view of the unwritten com-
pact between Great Britain and the Colonies, as States,
forming the Constitution of the Empire:
The introduction of requisitions in the time of peace is
novel, and therefore must be expected to be attended with
many consequential alterations in the constitutional connec-
tion of the Colonies with this country. I mean, upon the
restrictions of their trade, which have hitherto been always
accepted as an equivalent to pecuniary contributions. If we
should put the Colonies upon a new footing of money con-
tribution, in the time of peace, there can be no doubt but
that this country will think them entitled to relaxations in
trade, in proportion as they contribute. I have no doubt
but that, in future times, we shall come to be convinced of
the narrowness of that policy which thinks to cherish trade
by restrictions. We shall see many of these poor expedients
The Final Issue, 1 775-1 776 337
in the same light as we now do the little policy of Queen
Elizabeth's reign, about corporations, apprentices, poor laws
&c. Therefore, though I might not have been the first sup-
porter of this new system of contributions to peace requisi-
tions, yet I think it promises to open a more liberal system
than we are attached to now. The intercourse of one com-
mon cause in the common defence of the whole Empire, may
form a new and salutary connection between Great Britain and
her Colonies, instead of that connection by grievous restraints,
which will become more galling, and appear more absurd
every day. We shall have at least the choice of two modes of
receiving their assistance, which we may exercise according to
the discretion of the case, sometimes through the channel of
tra^e, sometimes through supply. The option may easily be
adjusted, without either strangulating the hand of industry, or
closing the hand of contribution. Ireland, besides providing
for its own internal establishment, provides annually, for the
common defence, a considerable number of men in the land
service. America may contribute the naval supply, being that
part of the common concern which forms the common bond of
connection between us. Seamen, ships or naval stores may
be the contribution in America.
These resolutions of Hartley's met the same fate as
those originally introduced by him.
The then existing political situation in Great Britain
made it impossible for the British Government to accept
any such view as the Congress proposed, of the powers of
the King and the Parliament in the Empire. The Con-
stitution of Great Britain was an unwritten Constitution,
conceived of, it is true, as emanating from the whole peo-
ple of that State, and distinguished from action merely
legislative and executive, but it was only morally the
supreme law of that State. A written Constitution,
formed by a Constitutional Convention of the people of
a State and legally supreme over all legislative and ex-
ecutive action within the State, was yet an experiment.
British legislation and the British Constitution were
2a
338 The Administration of Dependencies
legally one and the same thing, — that is, the Acts of Par-
liament were legally the supreme law of the State of
Great Britain, — as they still are.
Burke, although he admitted that there was a Consti-
tution of the Empire (that is, a fundamental law con-
ceived of as emanating directly from the people of the
Empire), which was distinct from the Constitution and
laws of Great Britain, and which it was the function of
Great Britain, as the Imperial State of the Empire, to
adjudicate and declare, held that this power was to be
exercised ultimately by the British Parliament. As the
House of Commons, by virtue of its power to dictate to
the King the choice of the Ministry, was the ultimate
power in Parliament, this proposition meant that the
House of Commons was to adjudicate and execute the
Constitution of the Empire — that that House, and not
the King, was the Disposer of the Empire.
Lord North, while not admitting that there was any
Constitution or laws of the British Empire distinct from
the Constitution and laws of Great Britain, seems to have
agreed that, if there was, Burke's theory was correct
This doubtless appeared to him to be a logical necessity
from the proposition (which he was the first Prime Min-
ister to admit) that the House of Commons had power to
dictate to the King the choice of the Ministry. If that
power was proper to be exercised by that House, it could
only be because the House of Commons was the ultimate
unconditioned and unlimited power in the State of Great
Britain, and was, in legal contemplation, the people of
the State of Great Britain assembled, and not their agent,
— and hence was entitled to control the King in the ex-
ercise of all his functions, even his judicial functions, his
treaty-making functions, and the functions which he
exercised ex officio in the British Empire. That the un-
conditional and unlimited power of the House of Com-
mons in the State of Great Britain appeared to him to be
The Final Issue, 1 775-1 776 339
an insuperable obstacle to the adoption of the American
theory of the conditional and limited power of the King
and the Parliament in the Empire, as ex officio represen-
tatives and agents of the State of Great Britain acting as
the Imperial State, was made evident in a speech de-
livered by him in the House of Commons on November
20, 1775, in which, while expressing his readiness to
accept any reasonable plan of settlement, he said, as
reported in the Parliamentary History :
That there were two grounds upon which every Minister
ought to stand ; the first was, that the King had an undoubted
right of naming his own servants; the second, which formed
the happiness of this country, that if the people, by their rep-
resentatives, did really disapprove the measures of any Minis-
ter, to that degree that they would not go along with him, the
King, however he might approve such Minister, could not
carry on business by him, and must part with him.
The Congress took the position that a ** Constitution *'
of the Empire which was not legally supreme for
Imperial purposes over the Constitution of Great Britain
was not a Constitution at all, but only special legisla-
tion of the British Parliament, and hence claimed that
the Constitution of the Empire and all legislation and
action in execution thereof were, in the nature of things,
supreme for Imperial purposes over the Constitution and
laws of Great Britain.
From this, the Congress deduced the corollary that,,
because the Constitution and laws of the Empire must
necessarily conflict with the Constitution and laws of the
State of Great Britain, and be supreme in all cases in
which they so conflicted, the British Parliament, which
was charged with the duty of adjudicating and declaring
the Constitution of Great Britain and of enacting legisla-
tion in execution thereof, was necessarily disqualified
from adjudicating and declaring the Constitution of the
34^ The Adminisrrarioa of Depczbieccies
Empire, and that the King of Great T^rr^-^^rr ^s tfre Oiief
Executive of the Imperial State, and ^-^ iijfEjsi rfxe Chaef
Executive of the Empire, had the sole powea. and dzir
of adjudtcatmg and causing to be executed, by agprocri-
ate le^slation and executive action, the Coostinztxoc of
the Empire. For the purpose of such cxecxKtnre legcsLi-
tion, they regarded the British Parliament* wit!iri tne
sphere allotted by the Constitution of the Ennpcre to tStr
Chief Legislature of the Empire, as being ^jr jj^tj
the Chief Legislature of the Empire.
The Congress recognized that the Coostitation. laws
and customs of the State of Great Britain viere in force
in the Colonies except to the extent to which they vere
rendered inapplicable by the local circumstances and con-
ditions,— as the Charters of the respective Colonies pro-
vided. The Constitution of the British Empire was, as
they believed, based on the Constitution of the State of
Great Britain — that is, on the great principles of justice
and good government recognized and declared, at various
times, and in various ways, in the history of the English
and British people; and they also believed that the laws
and customs of Great Britain, by which these great prin-
ciples had been worked out in Great Britain, were to be
considered as a guide in making Imperial dispositions,
but were not to be binding on the Colonies where their
local circumstances and conditions required a different
working out of these principles.
The King, from the British standpoint that the power
of the State of Great Britain was a power of legislation,
or of adjudication of the terms of the Constitution of the
Empire by Parliamentary action, was obliged to refuse
to receive the petitions contained in the two Addresses
of Conjrress to him. He was petitioned as the Chancellor
or the Disposer of the Empire, having jurisdiction to en-
join the breach of the contract for personal services be-
tween the State of Great Britain and the Colonies, as
The Final Issue, 1 775-1 776 341
States. Had he received the petitions (or, to use a legal
phrase, had he allowed the petitions to be filed in court),
against the objection of the opposing party, he would
have admitted that he had jurisdiction to give the relief
prayed for, and would have been in duty bound to adju-
dicate the questions raised in the petitions. Upon such
adjudication, it would have been the duty of Parliament
and the Colonial Assemblies to conform their legislation
to the decision, and, in case they refused to do so, it would
have been the duty of the King to refuse to execute or
to allow to be executed any Acts of Parliament or of the
Colonial Assemblies inconsistent with the Constitution as
so adjudicated and declared. This would have been for
the King to oppose himself, as the ultimate power in the
British Empire, to the House of Commons, the ultimate
power in the British State. Lord North undoubtedly
felt that he could not advise the King to enter into
such a struggle with the House of Commons, which might
endanger the peace of the State of Great Britain itself.
Such was the situation when the Declaration of Inde-
pendence was framed. It was evident, that, in stating
the causes of the dissolution of the political relationship
between Great Britain and the Colonies, the refusal of
the King to act as the Disposer of the Empire in adjudi-
cating the terms of the unwritten Constitution of the
Empire must be made the principal cause. Accordingly
the Declaration was framed as a Bill of Impeachment of
the then reigning King of Great Britain for nonfeasance
and malfeasance in office as Disposer of the Empire.
Had the Declaration of Independence been drawn at
the present day, when we are accustomed to the concep-
tion of the Federal State, composed of federally-equal
States, and of the Federal Empire, composed of an Im-
perial State and federally-subject States, and of a ** Con-
stitution ** as distinct from a **law" or a ''statute," it
would have been drawn as follows :
342 The Administration of Dependencies
First: There would have been a preamble, in which
the Colonies would have declared themselves to be and
to have always been States in a permanent contractual
relationship of subjection to the State of Great Britain,
from whence it would have been inferred that the State
of Great Britain and the Colonies constituted a Federal
Empire under an unwritten Constitution, and that that
unwritten Constitution was necessarily supreme over the
Constitution of Great Britain as the Imperial State for
Imperial purposes, and over the Constitutions of the
respective Colonies as Member-States; and' that the inter-
pretation of this unwritten Constitution was, by the nature
of things, vested in the King of Great Britain, as ex officio
the Chief Executive of the Empire, acting through a suit-
able tribunal of experts ; and that these adjudications were
to be executed by the needful rules and regulations made
by the King or by the legislation of Parliament acting
within the sphere of action of the Imperial State as de-
termined by the Constitution, and by the Colonial Assem-
blies, acting within the spheres of action of subordinate
Member-States, as so determined; and that the people of
Great Britain, as the ultimate source of all authority in the
Imperial State, were ultimately responsible to the Colonies
for the failure of the King to adjudicate and of the King
and the Parliament to execute the Constitution of the
Empire.
Second: There would have followed this preamble a
Bill of Impeachment of the King, charging him with re-
fusal to acknowledge himself to be the Disposer of the
Empire, charged with the duty of ultimately adjudicating
and executing the Constitution of the Empire.
Third : There would have followed this Bill of Impeach-
ment, a Bill of Impeachment of the People of Great
Britain for acquiescing in the King's refusal.
Fourth : There would have followed these two Bills of
Impeachment a Declaration of Dissolution of Political
The Final Issue, 1 775-1 776 343
Copartnership between the State of Great Britain and
the Colonies as States, for breach of the Articles of Co-
partnership— the Constitution of the Empire— by the
State of Great Britain,
An examination of the Declaration shows that it con-
tains exactly all these elements, though the facts and
conclusions of the imaginary preamble above written are
not contained in the preamble of the Declaration, but are
scattered through it in various places. The declaration
of the federally-subject statehood of the Colonies was
necessarily implied in the statement of the Declaration
that the British Parliament had attempted **to extend
an unwarrantable jurisdiction over us." Jefferson origi-
nally wrote this clause ** to exercise jurisdiction over these
our States." As, however, the Declaration as originally
adopted was entitled ** A Declaration by the Representa-
tives of the United States of America, in Congress
Assembled," and was entitled as engrossed, **The
Unanimous Declaration of the Thirteen United States
of America," the word **us*' meant **the Thirteen
United States," and the expression "these our States"
would have been tautological.
The whole passage in which this expression occurred,
as originally drafted by Jefferson, expressed plainly the
anti-Imperialist view of the political relationship. His
words were :
Nor have we been wanting in attention to our British breth-
ren. We have warned them from time to time of attempts of
their Legislature to extend a jurisdiction over these our States.
. . . We have reminded them . . . that, in constitut-
ing, indeed, our several forms of government, we had adopted
one common King, thereby laying a foundation for perpetual
league and amity with them; but that submission to their Par-
liament was no part of our Constitution, nor ever in idea, if
history may be credited.
344 The Administration of Dependencies
This was changed by the Congress so as to express the
Federal-Imperialist view, and was made to read :
Nor have we been wanting in attention to our British
brethren. We have warned them from time to time of at-
tempts by their Legislature to extend an unwarrantable juris-
diction over us. We have reminded them of the circumstances
of our emigration and settlement here.
The failure of the preamble to directly claim that the
Constitution of the Empire was legally supreme in the
Empire was also supplied by subsequent statements in
the Declaration. The statement that the British Parlia-
ment was exercising an " unwarrantable jurisdiction " over
the Colonies inevitably implied a Constitution of the
Empire supreme over the Acts of the British Parliament.
Only by assuming the existence of a supreme Consti-
tution of the Empire could the British Parliament be re-
garded as having "jurisdiction " over the Colonies; only
by this assumption could the exercise of power in cer-
tain respects be regarded as the exercise of ''unwarrant-
able jurisdiction/* and in other respects as the exercise
of ** warranted jurisdiction." The Declaration declared
that the King had ** combined with others " (referring to
the two Houses of Parliament and the Ministry) ''to sub-
ject us to a jurisdiction foreign to our Constitution and
unacknowledged by our laws; giving his assent to their
acts of pretended legislation," for various purposes which
were specified. The characterization of any Acts of Par-
liament as **acts of pretended legislation " inevitably im-
plied that Parliament exercised its powers in the Empire
under a Constitution which was the supreme law of the
Empire. On that theory, and on that theory alone,
could any Act of Parliament be called **an act of pre-
tended legislation.*' If it was in excess of the powers
granted to the Imperial State, or to Parliament, as its rep-
resentative, by the people of the Empire assembled, in
The Final Issue, 1 775-1 776 345
their Constitution, it was a pretence and a nullity and
not legislation, because not in execution of the supreme
law of the Empire.
The King was impeached by the Declaration for his re-
fusal to act as the Disposer of the Empire. It charged
that the Colonies had "petitioned" the King for "re-
dress," and that he had not only refused, but had done
many overt acts wholly inconsistent with his functions as
Disposer of the Empire. A large part of the Declaration
is occupied with the specification of these acts of the
King, evidencing his refusal.
John Adams objected to describing King George III.
in the Declaration as a tyrant, giving as his reason that
he always believed him "to be, in his official capacity
only, cruel."
The people of Great Britain were impeached by the
Declaration because, though having the power to compel
the King to fulfil his functions as Disposer of the Em-
pire, they had acquiesced in his nonfeasance and mis-
feasance.
The Empire was, by the Declaration, declared to be
dissolved on the initiative of Great Britain, and the inde-
pendence of the Colonies, and their consequent existence
as States, having full rights of sovereignty, was declared
to have resulted from the dissolution.
Everything in the original draft which tended to show
that the Colonies based their right to independence on a
claim of right to political equality with Great Britain, or
on a claim of right to secede from the Union with Great
Britain, was stricken out, and words were inserted by
Congress which conveyed the idea that the Colonies had
always been subordinate Member-States in the British
Federal Empire, and were willing and anxious to remain
such ; and that they were merely acquiescing in the abdi-
cation, by the State of Great Britain, of its functions as
the Imperial State in the Federal Empire.
346 The Administration of Dependencies
In the original drafts the first sentence began thus:
When in the course of human events it becomes necessary
for a people to advance from that subordination in which thej
have hitherto remained, etc.
The change, in Jefferson's handwriting, made it read,
as it finally read :
When in the course of human events it becomes necessary
for one people to dissolve the political bands which have con-
nected them with another, etc.
For Jefferson's words, "reject and renounce," as ap-
plied to the allegiance of the colonists to the King of
Great Britain, Congress substituted the words **are ab-
solved from," and for the words "dissolve and break
off," as applied to the political connection, the words *'is
dissolved."
As Jefferson originally wrote the last clause of the
Declaration, it read :
We, therefore, the representatives of the United States in
Congress assembled, do . . . reject and renounce alJ
allegiance and subjection to the Kings of Great Britain and
all others who may hereafter claim by, through, or under them,
and utterly dissolve and break off all political connection which
may heretofore have subsisted between us and the people or
Parliament of Great Britain, and finally we do assert and
declare these Colonies to be free and independent States.
This language was rejected by the Congress, and
they substituted the following:
We, therefore, the representatives of the United States in
Congress assembled . . . do . . . solemnly publish
and declare, that these United Colonies are, and of right
ought to be, free and independent States; that they arc ab-
The Final Issue, 1 775-1 776 347
solved from all allegiance to the British Crown, and that all
political connection between them and the State of Great
Britain is, and ought to be, totally dissolved.
By changing Jefferson's words "the political connec-
tion between the representatives of the United States in
Congress assembled and the people and Parliament of
Great Britain" to "the political connection between these
United Colonies and the State of Great Britain, " Con-
gress, in effect, declared that the Brifish Empire in
America, as it had formerly existed, had been a Federal
Empire.
The blame for the whole situation was placed by the
Declaration wholly on the King. He was recognized as
the representative of Great Britain ultimately responsible
for the performance of its functions as the Imperial State,
and he was declared to have abdicated his functions, with
the consent of the people of Great Britain ; from whence
it was concluded that the State of Great Britain had
abdicated, as the Imperial State.
The Declaration of Independence was, therefore, a
Declaration concerning Dependence. It opposed the
Federal Empire, as the ideal of America, to the Unitary
State, as the ideal of Great Britain. The British
Declaration of Unconditional Dependence of 1766 was
answered in 1776 by an American Declaration of Federal
Dependence. The Declaration of Independence did not
announce the proposition that all States are free and
equal. It merely announced that all States are born free
and equal, and hence not only capable of contracting,
but incapable of entering into any relationship which is
not contractual — that is, federal.
It was based on the theory that States, like individuals,
may rightfully, and, under some circumstances, ought
voluntarily to enter into a contract to submit to such
judicious leadership and control, under proper conditions
348 The Administration of Dependencies
and limitations, of a State qualified by its mental and
physical endowment to lead and control, as may result
in the general good of the States immediately concerned^
and of the world at large.
It is interesting, as possibly showing how and when
the word "disposition" came to be adopted in the
American public law to express the function of the Imperial
State in a Federal Empire, to notice that in the Procla-
mation of Congress of June 12, 1775, appointing
Thursday, July 20, 1775, as a day of humiliation and
prayer, issued shortly after Lord Chatham's Bill and
Burke's and Hartley's resolutions must have reached
America, the power of the Deity was described as a
"supreme, universal, and superintending providence,"
and He is called "the Disposer of all events."
The Proclamation read in part :
As the great Governor of the worlds by His supreme €md urn-
ver sal providence^ not only conducts the course of nature with
unerring wisdom and rectitude, but frequently influences the
minds of men to serve His wise and gracious purposes by His
providential government ; and it being at all times our indispensdiU
duty devoutly to acknowledge His superintending pramd^ nee j . , .
This Congress therefore, considering the present critical,
alarming and calamitous state of these Colonies, do earnestly
recommend that Thursday, the 20th day of July next, be ob-
served by the inliabitants of all the English Colonies on this CaiM'
nent^ as a day of public humiliation and prayer, thcU we way
. . . offer up our joint supplications to the cUl-ivise^ ommpatcni
and merciful Disposer of all events. . . that all America
may soon behold a gracious interposition of Heaven for tki
redress of her many grievances y the restoration of her tKDodei
rights [and^ a reconciliation with the Parent State on terms am-
stitutional and honorable to both.
In the Address to the People of Ireland of July 28,
1775, the Deity was spoken of as "the Supreme Disposer
of all human events."
The Final Issue, 1 775-1 776 349
As William Hooper, of North Carolina, was chairman
of the Committee which framed this Proclamation and
also of that which framed this Address, the honor of
having restored to the public law the word "dispose " as
signifying the power to adjudicate and execute the judg-
ment, seems to belong to him.
The final issue between Great Britain and the Colonies
was, therefore, generally, whether or not the British
Empire was a Federal Empire, and specifically whether
or not there was a Constitution of the British Empire,
and a law of the British Empire in execution thereof,
which were supreme, for Imperial purposes, over the Con-
stitutions and laws of the Imperial State and of all its
dependencies.
The Colonies claimed that there was such an Imperial
Constitution, and, as it was unwritten, they claimed that
it necessarily followed as a corollary, that it was to be
adjudicated and declared by the King of Great Britain,
as ex officio the Supreme Disposer of the Empire, and
was also to be executed by him, in the same capacity, by
means of rules and regulations made by him and admin-
istrative acts done by and under him ; and that the Brit-
ish Parliament, as ex officio the Chief Legislature of the
Empire, had also the power, within the sphere allotted to
it by the Constitution as so adjudicated and declared, to
make rules and regulations, in the form of statutes, in
execution of the Constitution.
As Great Britain did not admit that the British Empire
was a Federal Empire, and hence did not admit that
there was a Constitution of the Empire supreme, for
Imperial purposes, over the Constitution of Great Britain,
it did not admit the corollary.
CHAPTER XIX
THE AMERICAN EMPIRE PLANNED, I776
WHEN it is recalled that it was Franklin who
made the first draft of Articles of Confederation
which was considered by the Congress, it is not
surprising to find that it contained provisions establish-
ing a^ American Empire, in which the American Con-
federation was to be the Imperial State. It was Franklin
who made the original draft of the Plan of Union, which,
as has been already noticed, provided for the establish-
ment of an American Empire much more completely and
distinctly than it did for the establishment of an Ameri-
can State. He was the foremost expansionist of his
times. He published a Plan for Settling Two Colonies
West of the Allegheny Mountains^ in 1757, and by his
Canada Pamphlet in 1762 saved Canada to Great Britain,
when men of experience and influence in England,
alarmed by the spirit of expansion in America shown by
the Plan of Union, were advising that it should be
yielded back to France in return for the diminutive, but
highly cultivated and productive island of Guadaloupe.
In this first draft, presented to Congress on August 20,
1775, Franklin inserted Articles securing to the Indian
tribes the rights of uncivilized States dependent on the
Confederation, and providing for the "planting of new
colonies, when proper," by the Confederation. By an-
other Article, which showed his remarkable faith in the
possibility of the unlimited extension of a Confederation
of States acting by a Congress of elected delegates, he
provided for receiving into the Confederation, not only
all the other British Colonies on the American Continent
350
The American Empire Planned, 1776 351
(Quebec, — then including Canada and the Northwest
Territory, — St. John's and Nova Scotia, East and West
Florida), but also the West Indies, the Bermudas, and
even Ireland !
The Articles of this draft on these subjects read :
Article XI. A perpetual alliance, offensive and defensive, is
to be entered into as soon as may be with the Six Nations;
their limits to be ascertained and secured to them; their land
not to be encroached on, nor any private or Colony purchases
made of them hereafter to be held good ; nor any contract for
lands to be made, but between the Great Council of the In-
dians at Onondaga and the general Congress. The boundaries
and lands of all other Indians shall also be ascertained and
secured to them in the same manner, and persons appointed
to reside among them in proper districts; and shall take care
10 prevent injustice in the trade with them; and be enabled
at our general expense, by occasional small supplies, to relieve
their personal wants and distresses. And all purchases from
them shall be by the CongresSy for the general advantage and
benefit of the United Colonies.
Article V. That the power and duty of the Congress shall
extend to . . . the settling all disputes and differences
between Colony and Colony, about limits or any other cause, if
such should arise, and the planting of new colonies when proper.
The Congress shall also make such general ordinances as,
though necessary to the general welfare, particular assemblies
cannot be competent to, viz., those that may relate to our
general commerce, or general currency; the establishment of
posts; and the regulation of our common forces. . . .
Article XIV. Any and every Colony from Great Britain
upon the Continent of North America not at present engaged
in our Association, may, upon application and joining the said
Association, be received into the Confederation, viz., Ireland,
the West India Islands, Quebec, St. John's, Nova Scotia, the
Bermudas, and the East and West Floridas; and shall there-
upon be entitled to all the advantages of our Union, mutual
assistance and commerce.
352 The Administration of Dependencies
The draft of Articles of Confederation reported on
July 12, 1776, by the committee appointed by Congress
for the purpose, consisting of one member from each
State, was, as we are told by Madison, and as the Secret
Journals state, written by Dickinson. It contained full
and carefully drawn provisions intended to cover all the
problems which then confronted the United States, grow-
ing out of their relations with external communities sub-
ject to their control. These provisions were as follows:
Article XIV. No purchases of lands, hereafter to be made
of the Indians, by Colonies or private persons, before the
limits of the Colonies are ascertained, to be valid. All purchases
of lands not included within those limits^ when ascertained^ to he
made by contracts between the United States assenebled^ or by per-
sons for that purpose authorized by them^ and the GrecU Coumdls
of the Indians^ for the general benefit of all the United Colonia.
Article XVIII. The United States assembled shall have the
sole and exclusive right and power of . . . Regulating
the trade, and managing all afiFairs with the Indians: Limiting
the bounds of those Colonies which, by Charter or Proclama-
tion, or under any pretence, are said to extend to the South
Sea; and ascertaining the bounds of any other Colony that
appear to be indeterminate: Assigning territories for new
colonies ; either in lands to be separated from Colonies and hereto-
fore purchased or obtained by the Croivn of Great Britain from
the Indians, or hereafter to be purchased or obtained from them :
Disposing of all such lands for the general benefit of all ikt
United Colonies : Ascertaining boundaries in such new colonies
within which forms of government are to be estadlished on the
principles of liberty.
Article XX. Canada, acceding to this Confederation, and
entirely joining in the measures of the United Colonies, shall
be admitted into, and entitled to all the advantages of the
Union. But no other Colony shall be admitted into the same
unless such admission be agreed to by the delegates of msu
Colonies.
The American Empire Planned, 1776 353
In order to appreciate the significance of these words,
it is necessary to understand the situation which existed
at the time between "the United States assembled "
and the regions which were in fact or in expectation
under its control.
The five matters to be decided in the government of
these regions were :
First. — The arrangements which were to be made with
the Indian tribes. These tribes at the outbreak of the
Revolution were, by treaty, under the protection of the
State of Great Britain, but the protectorate was of that
peculiar kind which is now described as a "protectorate
over uncivilized regions" or a "constitutional protector-
ate"— that is, a political relationship between a State and
an external community of so low a degree of civilization
as to be unfitted for any form of government except a
tribal form, under which the minor community is per-
mitted to keep the form and ceremony of a half-sovereign
State, while the dominant State has, in fact, the powers
over the minor community which it would have if that
community were a dependency of itself as an Imperial
State — which powers, however, it refrains from exercis-
ing except upon emergency. This relationship is allowed
to exist by the dominant State in order to carry on the
government of the minor community with the least friction
possible, until it arrives at a point of development where
it can either be converted into a true dependency, or
where its land and population can be incorporated with
those of the dominant State.
Second. — The arrangements to be made with the Land
Companies. The Vandalia Company, which Franklin
had promoted, claimed two million five hundred acres
just west of the Allegheny Mountains northeast of Vir-
ginia, by grant from the British Crown. A charter had
been prepared, giving powers to the company as a colo-
nizing company, which was ready except for the affixing
23
354 The Administration of Dependencies
of the seals when the war broke out. Many Englishmen
were interested in the company. The Ohio and Indiana
Companies, which had been promoted by Arthur Lcc
and Samuel Wharton, claimed lands in the same region,
under grants from Virginia and from the Indian tribes,
which had been recognized by the Crown and merged in
the grant to the Vandalia* Company. The Illinois Com-
pany and the Wabash Company claimed large and inde-
terminate amounts of land on the Illinois and Wabash
Rivers, by grant from the Indians. These Land Com-
panies were inchoate colonies — ** new colonies."
Third. — The arrangements to be made for the part of
the North American Continent which was dependent on
the State of Great Britain at the outbreak of the Revo-
lution, not included within the limits of any Colony or
Land Company. These lands were * * lands to be separated
from Colonies and heretofore purchased or obtained by
the Crown of Great Britain from the Indians, or hereafter
to be purchased or obtained from them."
The charter-limits of some of the thirteen Colonies ex-
tended to **the South Sea," that is, to the Pacific Ocean;
but the British Government, by the Proclamation of the
King in Council of 1763 (issued soon after the Treaty of
1763, which fixed the western boundary of the British
possessions in America at the Mississippi River) had
claimed that those provisions of the Charters which made
the South Sea the western boundary were rescinded, and
by that Proclamation had, by forbidding grants of land
by the Colonies beyond the ridge of the Allegheny and
Appalachian Mountains, practically fixed the western
boundaries of these Colonies along the ridge of those
mountains. These Colonies had, however, prior to the
Proclamation of 1763, in fact "appropriated " land be-
yond the ridge of the mountains by including it within
the boundaries of their counties and other municipalities.
Virginia, in its Constitution adopted June 29, 1776, made
The American Empire Planned, 1776 355
an express claim to jurisdiction, as the Imperial State of
an Empire, westward of the mountains to the Missis-
sippi River, by declaring that its western boundary
should be as fixed by the Virginia Charter of 1609 and
the Treaty of 1763 ** unless, by Act of the Legislature
[of Virginia], one or more Governments be established
westward of the Allegheny Mountains." By Dickinson's
draft of the Articles of Confederation, Congress was to
be given the power, which the King in Council had
claimed, of ** limiting the bounds" of the Colonies which
claimed to the South Sea, and of "separating from" them
the lands westward of the bounds so limited. The lands
thus to be ** separated from Colonies" constituted an
enormous region extending from the Mississippi River on
the west to the ridge of the Allegheny and Appalachian
Mountains on the east, and from near the Gulf of Mexico
on the south to the present northern boundary of the
United States. It was realized by the Congress from the
outset that if this region should be brought into a state
of dependence on any European Power, it would be a
menace to the existence of the Confederation, and if it
should be kept permanently in dependence on the Con-
federation, or on a State or States of the Confederation,
it would raise problems in government of the most serious
kind. That it must, however, be held in a state of de-
pendence during its settlement was evident. The proper
provision to be made in the Articles of Confederation
regarding this region was necessarily the most difficult
matter to be decided in the framing of the Articles.
The theory of Dickinson's draft was that this region
belonged to the United States by manifest destiny and
anticipated conquest, or by the Indian treaties. It did
not claim the region under the Charters of the Colonies.
The expression was: "Limiting the bounds of those
Colonies which, by Charter or Proclamation, or under any
pretence J are said to extend to the South Sea" — the claims
356 The Administration of Dependencies
under the Charters of the Colonies being thus treated as
without foundation. The treaties with the Six Nations,
by which they placed themselves under the protection of
Great Britain, had been made with the King of Great
Britain, but the United Colonies had been a party to
these treaties, and the Committee of Thirteen seem to
have treated the King as acting for the benefit of the
United Colonies in making them.
Fourth. — The arrangements to be made in the case of
Vermont, which had separated itself from New York,
New Hampshire, and Massachusetts. On July 8, 1777,
a Convention in Vermont adopted a Constitution forming
a permanent Government ** on the principles of liberty,"
which placed Vermont under the ''direction '* of Con-
gress. The clauses relating to this subject were as fol-
lows :
It is absolutely necessary, for the welfare and safety of the
inhabitants of this State, that it should be, henceforth, a free
and independent State; and that a just, permanent, and
proper form of government should exist in it, derived from,
and founded on, the authority of the people only, agreeabU
io the direction of the honorable American Congress,
The people of this State have the sole, exclusive, and
inherent right of governing and regulating the internal pdice
of the same,
Vermont was " a new colony within which forms of
government are to be established on the principles of
liberty." Doubtless, also, the Kentucky and Maine dis-
tricts were regarded as falling within this description.
Fifth. — The arrangements which were to be made
with the British and French settlements on the North
American Continent and in the Bermudas and the West
Indies, in case they should come to the United States as
conquests resulting from the war, and with the Colonies
in the Western region when they should have advanced
The American Empire Planned, 1776 357
to a stage which entitled them to admission into the
Union. These settlements were included under the de-
scription "Canada ** and ** any other Colony '* not in the
Union.
* Article XVIII. of Dickinson's draft took up the first
four problems in order.
First. — With respect to the Indian tribes, "the United
States assembled/' as the Imperial State, was to have the
sole and exclusive right and power of regulating the trade
and managing all affairs with them. These were exactly
the powers that had been exercised over them by the
State of Great Britain, through the King in Council. The
regulations of the King in Council had extended only to
the actions of white men with the Indians. The British
Government had never attempted to regulate the dealings
of Indians with white men, but had held the whole tribe
responsible for the acts of each individual Indian. It had
never regarded the agreements made with the Indian
tribes as strictly treaties, but rather as fictitious treaties
resembling actual treaties to the same extent as the In-
dian tribes resembled States. Such treaties were properly
described as "affairs with*' the Indians, which "the
United States assembled" was "to manage " as the State
of Great Britain had previously managed them.
In this specification of the powers of Congress over the
Indian tribes, there was necessarily implied a recognition
of the statehood of these tribes and of their federal union
with "the United States assembled," as the Imperial
State, in a relationship of subordination, each agreeing
to isolate itself from the other because the two popula-
tions were on such different planes of civilization that
free trade and intercourse would be harmful to both, and
* particularly to the weaker party.
The principle upon which this treatment of the Indian
tribes was justified was the general principle, which the
American Colonies had admitted throughout their contest
358 The Administration of Dependencies
with Great Britain, that the Imperial State had the
right, in its disposition of the affairs of the Empire, to
isolate its dependent States from itself and from eadi
other, by restrictions on trade and intercourse, to the ex-
tent necessary for the good of the States of the Empire
immediately concerned, of the whole Empire, and of the
world at large.
Second. — With respect to the Land Companies de-
scribed as "new colonies," **the United States as-
sembled,** as the Imperial State, was given the sole and
exclusive right and power of ** assigning territories " for
them. This was a power which had been exercised by
the State of Great Britain, through the King in Council
As so many British citizens were interested in the In-
diana and Vandalia Companies, it was evidently thought
proper (as was afterwards actually recommended by the
committee of Congress on the subject) that the grants
should be cut down so as to be proportioned in size tc
the proportion of the interest of American citizens. The
Indian grants to the Illinois and Wabash Companies were
so indeterminate that they could not properly be rec(^-
nized. For fear, therefore, lest the general provision
giving governmental power over the region might operate
as a recognition of the validity of these grants in full, it
was evidently thought necessary to give this special power.
By describing the power of "the United States as-
sembled '* over the Land Companies as a power of **a5-
signing territories " for them, their dependent statehood
was recognized — the word "territories" being applicable
solely to lands over which a State exercises its govern-
mental power.
Third. — With respect to the parts of the American
continent claimed by the United States, which were
occupied by the Indians or which had been bought from
them by the State of Great Britain and not yet appro-
priated to settlement, — which, as has been seen, included
The American Empire Planned, 1776 359
the whole of the unsettled parts of North America east
of the Mississippi and northward to the Canadian frontier,
— the provision was as follows :
The United States assembled shall have the sole and exclu-
sive right and power of . . . disposing of all . . .
lands [to be separated from Colonies and heretofore purchased
or obtained by the Crown of Great Britain from the Indians,
or hereafter to be purchased or obtained from them], for the
general benefit of all the United Colonies.
The addition of the words ** for the general benefit of
all the United Colonies" was necessary from the fact that
a large part of this region was claimed by particular States
of the Union. Had this not been the case doubtless the
expression ''disposing of all lands" would have been
left unqualified.
The region thus described as that which "the United
States assembled " should have the power to "dispose
of " was exactly the region which the American Colonies
had regarded as within their Empire ever since 1750.
According to the Plan of Union of 1754, it was to be
colonized by them, not by Great Britain. The prohibi-
tion by Great Britain of their colonization of the region,
initiated by the Proclamation of 1763 and consummated
by the Quebec Act of 1774, was a common grievance of
the Colonies which did more to unite them in opposition
to Great Britain than any other infringement of what they
believed to be their rights as Member-States of the Brit-
ish Empire. The words which the Congress should adopt
to express the power of "the United States assembled/' as
the Imperial State of the American Empire, over this re-
gion, had to be chosen with the greatest care, in order
that Great Britain might not charge the United Colonies
before the whole world with bad faith in their protesta-
tions of a desire to continue parts of the British Empire
as a Federal Empire. Had the words "the power of
360 The Administration of Dependencies
governing *' or "the power of legislating^ for ** the Westeni
lands been used, the United Colonies, as United States,
would have placed themselves before the whole world
in a most disagreeable light. After claiming that thqr
declared themselves independent on the sole ground that
Great Britain had wrongfully claimed that its Central
Government had unconditional and unlimited power in
the British Empire, they would have immediately created
an American Empire in which the Central Government
of the American Confederation had unconditional and
unlimited power, and their subsequent action would have
belied their former.
The power of the King in his official capacity — that is.
of the King in Council — over the Western region was
described in the Annual Register of 1763, in the passs^
heretofore quoted, as a power of "disposition." The
power which the King exercised over "colonies and con-
quests" had been described by Attorney-General Thur-
low, in the case of Campbell v. Hall^ as a power "of
disposition of the laws and property " of the country,
and the Court in that case had held that this power of the
King over conquests was conditioned and limited exactly
as the Americans claimed that the power of the State of
Great Britain over the American Colonies ought to be.
The power which the King, as the representative of the
State of Great Britain, exercised over the American
Colonies had been regarded by the Congress, in the Dec-
laration of Independence, and the proceedings leading up
to it, as a power to adjudicate and execute the unwritten
Constitution of the Empire, which was exactly a power
to ** dispose of" the affairs of the Empire. The King,
in the exercise of these functions, was regarded by the
Colonies as ex officio the Chief Executive of the Empire
because actually the Chief Executive of the State of
Great Britain. Nothing was more natural than that the
Congress, which was the Chief Executive of the Confcd-
The American Empire Planned, 1776 361
eration, should be given the same powers in the Ameri-
can Empire that the King of Great Britain would have
exercised in the British Empire had he actually per-
formed in that Empire the functions which the Colonies
considered it his duty to perform. By such a grant of
powers the American Confederation would have been
recognized as the Imperial State of an American Federal
Empire, exercising its powers through the Congress as its
Chief Executive. The functions of the Congress would
have been to adjudicate and execute the Constitution of
the American Federal Empire — a Constitution founded
on the Constitution of the Confederation, but which dif-
fered from it to the extent that the local circumstances
and conditions of the dependent States in the Western
region might require.
The coupling of the word "lands " with the expression
"dispose of " did not confine the power of "the United
States assembled " to merely making dispositions of the
soil. Lands owned by the State differ from lands owned
by a private individual. The latter owns only the
property** in the lands; the State owns both the
property" and the "jurisdiction." The power of
the State to dispose of lands owned by it, is, therefore,
both a right to dispose of the soil of the lands — of the
right of property in them — and to dispose of the juris-
diction over thepfi.
Considering, therefore, the immense significance that
the expression used to describe the power of the United
States over the Western region had; considering, also,
that the draft of Articles of Confederation in which the
power of the United States was defined to be a power
"to dispose of the lands " in this region, was written by
Dickinson, who was the originator of the conception of
the Federal Empire; considering, also, that the expres-
sion "to dispose of " was the only expression in the Eng-
lish language which exactly expressed the character and
* t
t *
362 The Administration of Dependencies
extent of the powers of the Imperial State in a Federal
Empire, and that it was consecrated by a usage of more
than a century and a half to express exactly a govern-
mental power of this kind, it seems there can be no doubt
but that the intention of the Committee of Thirteen was
to declare to all the world, by the use of this expression,
that the American Empire, which they were establishing
over the Western region, should forever be and remain a
Federal Empire, in which "the United States assembled"
should be the Imperial State.
Anticipating the narrative somewhat, it is perhaps
proper here to notice a somewhat striking corroboration
of the interpretation which has here been placed upon
the expression **to dispose of," as describing the power
of **the United States assembled" over the lands to be
acquired from the Indians in the Western region, by one
who would naturally have been careful not to extend the
proper meaning of the word — Thomas Jefferson. In a
letter to James Monroe, of July 9, 1786, Jefferson said,
speaking of the plan for the government of the North-
west Territory :
With respect to the new States, were the question to stand
simply in this form, Hoiv may the ultramontane territory k
disposed of ^ so as to produce the greatest and most immediate
benefit to the inhabitants of the maritime States of the Union,
the plan would be more plausible, of laying it off into two or
three States only.
Fourth. — With respect to the Vermont, Kentucky,
and Maine districts, "the United States assembled " was
given power to ''ascertain" their "boundaries." The
special difficulty with these cases was the ascertainment
of boundaries. The question of the boundaries of Ver-
mont had already become a pressing one. The States of
New York, New Hampshire, and Massachusetts claimed,
first, that Vermont had no existence as a distinct Govern-
The American Empire Planned, 1776 363
ment for any purpose, and, secondly, that, if it had, the
boundaries claimed by it were unreasonable. The same
difficulty existed with respect to the Kentucky and Maine
districts, though to a lesser degree, since they were not
so nearly surrounded by the existing States. This
clause, if it had been adopted, would have recognized
Vermont as a colony of the United States by describing
it under the designation of "new colonies within which
forms of government are to be established on principles
of liberty."
There was contained in the expression "ascertaining
boundaries " a recognition of the personality and de-
pendent statehood of such "colonies." This expression
was exactly the same as would have been used in a suit
between individuals where boundaries of lands were in
dispute. A State "alters" the boundaries of its munici-
palities. An international tribunal or an Imperial State
"ascertains " the boundaries of States.
Fifth. — With respect to the British and French settle-
ments on the North American Continent and in the Ber-
mudas and West Indies, and with respect to the colonies
of the United States in the Western region, the States
of the Union — not "the United States assembled " —
were recognized as having the power to "admit into the
Union," by a vote of nine out of thirteen. The case
was met by Article XX. of Dickinson's draft, which,
while allowing Canada to enter the Union "on joining in
the measures " of the States of the Union, provided that
"no other Colony shall be admitted into the Union, unless
such admission be agreed to by the delegates from nine
Colonies."
"Admission into the Union " meant admission to rep-
resentation in the Congress. Thus this Article related to
an entirely different subject from the two preceding Ar-
ticles. The "disposing of" the Western region, the
"regulating of commerce and managing all affairs with "
366 The Administration of Dependencies
into the Union on any terms whatever, and hence on
unequal terms, if the Congress saw fit.
The word ** Colony," in this Article, was evidently used
in its most inclusive sense. The Article is plainly a re-
vision of the Article in Franklin's draft on the same sub-
ject, in which he provided for receiving into the Union
**any and every Colony from Great Britain upon the
Continent of North America not at present engaged in
our Association." The omission of all these qualifying
words could only have been for the purpose of giving the
word "Colony" its widest meaning. It meant, practi-
cally, any political community external to the Ameri-
can Union, which was under the governmental control
of a European Power or of the American Union, as its
Imperial State, and which was dependent for its exist-
ence in a condition of statehood upon the protectioa
of its Imperial State. The word "Colony," therefore,
referred to the States expected to arise in the Western
region, as well as to all others. It applied also to
States dependent on the United States which mi^t
become such by conquest, by cession, or by voluntary
union in a relationship of dependency.
Over against the contrary view expressed by Madison
in Chapter 43 of The Federalist, may be set the view of
Jefferson expressed in his draft of the Plan of Govern-
ment for the Northwest Territory, to which reference
will be made hereafter, that the word "Colony " in this
Article was intended to apply to the new States in the
Western region. Jefiferson was a member of the Conti-
nental Congress at the time the Articles of Confederation
were debated. Madison did not become a member until
after the Articles were adopted.
Dickinson's draft was debated in Congress, in Com-
mittee of the Whole, on parts of thirteen days between
July 22 and August 20, 1776, with the result that, on
August 20, a new draft was reported by the Committee
= The American Empire Planned, 1 776 365
s any propositions which it might make for entering the
BE Union on other terms. The various "Addresses " issued
• by the Congress were drawn by different hands, and, as
E it so happened, the Roman Catholic religion was bitterly
r_ attacked in all of them except the one to the people of
^ Canada, h propos of the Quebec Act of 1774, which had
- assured to the French inhabitants full liberty in the exer-
- cise of the Roman Catholic religion. When the Commis-
; sioners arrived, they found that they had to deal with the
p Roman Catholic priests entirely, they having full charge
of the interests of the French inhabitants. The priests
called attention to the attacks of the Americans on their
religion and to the security they enjoyed under British
rule, and politely refused to listen to the Commissioners.
Franklin returned in advance of the other Commission-
ers, in time to take part in the signing of the Declara-
tion of Independence, reporting that only one Canadian
in five hundred could read, and advising that, if another
Commission were sent, it be composed wholly of school-
masters. After the Commissioners reported, there was no
further idea of holding Canada except as a dependency.
On July 12, 1776, when Dickinson's draft was reported
by the Committee, though any equal union with Canada
was hopeless, it was plainly necessary to renew, in the
Articles of Confederation, the offer which had been made
in the Address of Congress to the People of Canada.
Canada was, by the provisions of Article XX., to be
** admitted into the Union " and also ** to be entitled to
all the advantages of the Union," that is, it was to be
admitted on equal terms. **Any other Colony" was
simply "to be admitted into the Union " in case such ad-
mission should be agreed to by nine States. The plain
meaning of this was that the American Confederation
might admit Canada into the Union on unequal terms,
if it refused to accept equal terms, and that the Con-
federation might admit any other Colony except Canada
368 The Administration of Dependencies
that there ought not to be any provision in the ^
which would give Congress power to determine the
boundaries of any State of the Union, as between it and
the Union. The Congress, as the representative of the
Union, was, in such a case, disqualified by interest to act
judicially. As there was no absolute necessity* for in-
serting a provision in the Articles relating to tk
administration of dependencies unless the Union, as dis-
tinct from the States composing it, had or was immedi-
ately to have dependencies to administer, and as tk
Western region was the only region which it was reasoo-
ably to be expected would soon become dependent oc
the Union, there would have been an almost necessary
implication, if any provision relating to the administra-
tion of dependencies had been inserted in the Articles,
that it related to the Western region, and the Congress
might very properly have claimed, under such a provision,
the right to determine the boundaries between the West-
ern region and the States of the Union, as an incident to
its power to administer the region as a dependency.
It seems, however, that there was another good reason
which induced the Congress to refrain from defining the
powers of the Union over the Western region. The
Congress, in framing the Articles of Confederation, was.
in fact, sitting as the Constitutional Convention of the
people of the Union. The Articles of Confederation
were to be the permanent Constitution of the Union.
This was particularly the case with respect to any pro-
visions concerning the powers of the Union over com-
munities external to itself. A policy in this respect
outlined in the Articles of Confederation would bind the
Union and its successors for all time. In attempting to
define the powers of the Union in this respect, the ques-
tion immediately arose whether the principles governing
the political relationship between widely separated coun-
tries like Great Britain and America governed the political
The American Empire Planned, 1 776 369
relationship between adjacent countries like the Union
and the Western region.
It was recognized that the problem was a difficult one,
and substantially the problem of the proper relationship
between Great Britain and Ireland, — that is, the prob-
lem how a strong State can justly deal with a State,
naturally dependent on it, whose manifest destiny is,
at some time, either to have its land and population
incorporated with the land and population of the
stronger State so as to form a Unitary State, or to
be admitted to an equal federal union with the stronger
State or its component States, by equal representation
in a common Parliament or Congress, so as to form a
Federal State, but which is unfitted and will necessarily
continue for many years to be unfitted for such an incor-
poration or admission to equal union. The new States
which were expected to arise in the Western region were
certain to be of this kind — naturally dependent on the
American Confederation and manifestly destined at some
time in the future for admission into the Confederation,
on an equality with the old States in the matter of rep-
resentation in the Congress, but certain to be unfitted for
a longer or shorter period, by reason of their local circum-
stances and conditions, for equal union. In trying to
work out this problem, England and Great Britain,
though with unconditional and unlimited powers, had
failed; and it undoubtedly seemed to the majority in
Congress presumptuous to commit the Confederation to
any policy whatever which, by restricting its powers,
might embarrass it in working out the problem. Con-
gress itself declared in its resolution of September 6, 1780,
that the discussion of the question of the power of the
Union over the Western region "was declined, on mature
consideration, when the Articles of Confederation were
debated."
The entire absence of any provision in the draft of
a4
360 The Administration of Dependencies
governing " or **the power of legislating for " the Western
lands been used, the United Colonies, as United States,
would have placed themselves before the whole world
in a most disagreeable light. After claiming that they
declared themselves independent on the sole ground that
Great Britain had wrongfully claimed that its Central
Government had unconditional and unlimited power in
the British Empire, they would have immediately created
an American Empire in which the Central Government
of the American Confederation had unconditional and
unlimited power, and their subsequent action would have
belied their former.
The power of the King in his official capacity — that is,
of the King in Council — over the Western r^^ion was
described in the Annual Register of 17^3, in the passage
heretofore quoted, as a power of "disposition/* The
power which the King exercised over "colonies and con-
quests" had been described by Attorney-General Thur-
low, in the case of Campbell v. Hall^ as a power "of
disposition of the laws and property " of the country,
and the Court in that case had held that this power of the
King over conquests was conditioned and limited exactly
as the Americans claimed that the power of the State of
Great Britain over the American Colonies ought to be.
The power which the King, as the representative of the
State of Great Britain, exercised over the American
Colonies had been regarded by the Congress, in the Dec-
laration of Independence, and the proceedings leading up
to it, as a power to adjudicate and execute the unwritten
Constitution of the Empire, which was exactly a power
to "dispose of" the affairs of the Empire. The King,
in the exercise of these functions, was regarded by the
Colonies as ex officio the Chief Executive of the Empire
because actually the Chief Executive of the State of
Great Britain. Nothing was more natural than that the
Congress, which was the Chief Executive of the Confed*
The American Empire Planned, 1776 361
eration, should be given the same powers in the Ameri-
can Empire that the King of Great Britain would have
exercised in the British Empire had he actually per-
formed in that Empire the functions which the Colonies
considered it his duty to perform. By such a grant of
powers the American Confederation would have been
recognized as the Imperial State of an American Federal
Empire, exercising its powers through the Congress as its
Chief Executive. The functions of the Congress would
have been to adjudicate and execute the Constitution of
the American Federal Empire — a Constitution founded
on the Constitution of the Confederation, but which dif-
fered from it to the extent that the local circumstances
and conditions of the dependent States in the Western
region might require.
The coupling of the word "lands " with the expression
"dispose of " did not confine the power of "the United
States assembled " to merely making dispositions of the
soil. Lands owned by the State differ from lands owned
by a private individual. The latter owns only the
property" in the lands; the State owns both the
property" and the "jurisdiction." The power of
the State to dispose of lands owned by it, is, therefore,
both a right to dispose of the soil of the lands — of the
right of property in them — and to dispose of the juris-
diction over thejn.
Considering, therefore, the immense significance that
the expression used to describe the power of the United
States over the Western region had; considering, also,
that the draft of Articles of Confederation in which the
power of the United States was defined to be a power
"to dispose of the lands " in this region, was written by
Dickinson, who was the originator of the conception of
the Federal Empire; considering, also, that the expres-
sion "to dispose of " was the only expression in the Eng-
lish language which exactly expressed the character and
« 4
<«
370 The Administration of Dependencies
August 20, 1776, determining the power of the Union
over the soil and jurisdiction of the Western region,
caused a delay in the agreement by Congress upon
Articles of Confederation for a year and three months.
The whole matter lay dormant from August 20, 1776,
until October 15, 1777. On that day, three resolutions
relating to the subject of the administration of depen-
dencies were proposed, and, although all were lost, they
were, in fact, the foundation of the whole policy of the
United States towards the communities in the Western
region, and were, in substance, acted upon subsequently
as if they had been incorporated into the Articles of
Confederation.
The first of these resolutions read :
That in order to render the present Union and Confederacy
firm and perpetual, it is essential that the limits of each re-
spective territorial jurisdiction should be ascertained by the
Articles of Confederation ; and therefore it is recommended to
the Legislatures of every State to lay before Congress a descrip-
tion of the territorial lands of each of their respective States,
and a summary of the grants, treaties, and proofs, upon which
they are claimed, or established.
The yeas and nays were taken, and only New York,
Pennsylvania, and Maryland voted in favor of the resolu-
tion.
This resolution was evidently regarded as the prerequi-
site to any statement in the Articles regarding the kind
of power which the Confederation should exercise over the
dependencies, because, although two resolutions were im-
mediately offered expressing alternative theories of the
policy to be pursued by the Union in the administration
of the Western region, both were lost, and the yeas and
nays were not taken, — the rejection of them evidently
being considered a foregone conclusion after the vote
on the first resolution.
The American Empire Planned, 1776 Z7^
The second resolution was :
That the United States in Congress assembled shall have
the sole and exclusive right and power to ascertain and fix the
western boundary of such States as claim to the South Sea;
and to dispose of all land beyond the boundary so ascertained
for the benefit of the United States.
Evidently this resolution expressed the view of the
Federal-Imperialist party in Congress, who held to the
theory of Dickinson that the Congress was the successor
of the King in the Empire and, as such, had power over
the dependencies, which they described as a power of
''disposition."
The third resolution was :
That the United States in Congress assembled shall have
the sole and exclusive right and power to ascertain and fix the
western boundary of such States as claim to the Mississippi,
or South Sea, and lay out the land beyond the boundary so
ascertained into separate and independent States, from time
to time, as the numbers and circumstances of the people
thereof may require.
This resolution expressed the anti-Imperialist theory
that the ** States *' were to "arise " in the Western region
without the assistance or supervision of the Union, ex-
cept that it should fix the boundaries of these ** States,"
** from time to time, as the numbers and circumstances
of the people thereof may require." This resolution, if
it had been adopted, would have put the United States
in the power of the communities of the Western region,,
with the single reservation that it might gerrymander the
country, from time to time, so as to divide or isolate, and
thus weaken, those communities which persisted in acting^
adversely to the general interests.
As will be seen, the final policy was a compromise re-
sulting from a modification of the plan proposed in the
372 The Administration of Dependencies
first resolution, and a combination of the theories ex-
pressed in the last two resolutions.
The Articles of Confederation were agreed upon by
Congress on November 15, 1777, and on November 17,
copies signed by the President of Congress were ordered
sent to the Legislatures of the respective States for rati-
fication. All reference to civilized dependencies of the
Confederation was omitted, except so far as they were
referred to in the Article relating to Canada and "other
Colonies/' which was retained as Article XL, and which
read :
Canada acceding to this Con federation , and joining in the
measures of the United States, shall be admitted into, and
entitled to all the advantages of this Union; but no other
Colony shall be admitted into the same, unless such admission
be agreed to by nine States.
The Articles contained very elaborate provisions giv-
ing power to Congress to determine controversies be-
tween the States, but none giving it power to determine
controversies between the Confederation and a State, and
in order to prevent a proceeding for determining a dis-
pute between States from being made a pretext by Con-
gress for adjudicating the claims of territory as between
the Confederation and a State, it was provided that "no
State shall be deprived of territory for the benefit of the
United States."
The only provision relating to the administration of
uncivilized dependencies was contained in the power of
** regulating the trade and managing all affairs with the
Indians, not members of any of the States." In order
to prevent Congress from determining territorial limits
as between the Confederation and the States under pre-
text of '* regulating the trade and managing all affairs
with the Indians,'* it was made a proviso to this power
The American Empire Planned, 1776 373
that " the legislative right of any State within its own
limits be not infringed or violated."
In spite of the fact that Congress "declined to discuss "
the question of the administration of the dependencies
of the Union at the time the Articles of Confederation
were debated, the work of the Committee of Thirteen on
this subject was not lost. They had, in fact, planned the
American Federal Empire, and their plans were finally
adopted.
CHAPTER XX
THE AMERICAN EMPIRE DECLARED, 1778
IF any proof is needed, other than Franklin's and
Dickinson's drafts of Articles of Confederation, that
it was the purpose of the United Colonies, from the
moment when their independence became a matter of
necessity, to form themselves into a Union of States
which should be the Imperial State of an American Em-
pire, all doubt on the subject is removed by the Treaties
of Alliance and Commerce with France, signed February
6, 1778, and ratified by Congress on May 5, 1778. The
Treaty of Alliance shows, beyond a doubt, that the
American Union intended to reduce to its possession by
conquest, and to hold permanently, all those parts of the
American Continent external to the Union, which then
belonged to Great Britain, and also the Island of Ber-
muda, as dependencies of the Union, or to incorporate
these regions, as States, into the Union, according to its
discretion — all conquests from Great Britain in the West
Indies being set apart to France, to be held as its de-
pendencies. The purpose of Congress in this respect
was made clear so early as December 30, 1776, by its In-
structions to the Commissioners at the Court of France,
directing them to secure, if possible, a clause in the treaty
they were endeavoring to negotiate, which should pro-
vide that in case Cape Breton, Newfoundland, and Nova
Scotia should be ** reduced/* **the Province of Nova
Scotia, Island of Cape Breton, and the remaining part of
Newfoundland '* (one half) should be "annexed to the
territory and government of the United States.*'
374
The American Empire Declared, 1778 375
In the Treaty of Alliance it was provided :
Article V. If the United States should think fit to attempt
the reduction of the British power remaining in the northern
parts of America, or the Islands of Bermudas, those countries
or islands, in case of success, shall be confederated with or de-
pendent upon the said United States,
Article VI. The most Christian King renounces forever the
Islands of Bermudas, as well as any part of the Continent of
North America which, before the Treaty of Paris in 1763, or
in virtue of that Treaty, were acknowledged to belong to the
Crown of Great Britain, or to the United States, heretofore
called British Colonies, or which are at this time, or have lately
been, under the power of the King and Crown of Great
'Britain.
Article VII. If his most Christian Majesty shall think
proper to attack any of the islands situated in the Gulf of
Mexico, or near that Gulf, which are at present under the
power of Great Britain, all the said isles, in case of success,
shall appertain to the Crown of France.
• •••••••
Article XI. The two parties guarantee, mutually, from the
present time and forever, against all other powers, to wit, the
United States to his most Christian Majesty, the present pos-
sessions of the Crown of France in America, as well as those
which it may acquire by the future treaty of peace; and
his most Christian Majesty guarantees, on his part, to the
United States, their liberty, sovereignty, and independence,
absolute and unlimited, as well in matters of government as of
commerce, and also their possessions^ and the additions or con-
guesis that their Confederation may obtain during the war, from
anyV)f the dominions now or heretofore possessed by Great
Brit an in North America, conformably to the fifth and sixth
ArticLs above written.
Inlhe Treaty of Commerce which accompanied the
Treatmof Alliance and in the Instructions of Congress
on which the Treaty of Commerce was based, the expres-
sion ** subjects of the United States " was used— in the
37^ The Administratioft of E^egendencies
latter, repeatedly. In the Instructions the phrase was
" subjects, people, and inhabitants of the United
States." In the Treaty the word "subjects " was coupled
with the word ** citizens" and '* inhabitants." In the
ninth Article, reference was made to the ** states,
provinces, and dominions of each party," thereby
implying that the United St^es had or might have
** provinces *' or '* dominions, "\ Ii^ tt^e sd^veoth Article
mention was made of places *' within the jdnsaiction of
the United States or any of them," thus distinguishing
between places within the jurisdiction of the United
States and places within the jurisdiction of the respective
States.
The Treaty of Alliance was a Declaration of the Ameri-
can Empire, supplementing the Declaration of Indepen-
dence, which was a Declaration of the American State.
The Treaty of Alliance was also an international recog-
nition of both the American State and the American
Empire. The French Commissioners objected to recog-
nizing the sovereignty and independence of the United
States, fearing that France would be embroiled in the
disputes of the several States. The American Commis-
sioners assured them that the Treaty should be construed
as recognizing the sovereignty and independence of the
American Union. The facts concerning this conference
are narrated by Arthur Lee, one of the Commissioners,
in his diary of the negotiations. This action of the Com-
missioners was quite in accordance with the action of the
Commissioners appointed by Congress in September,
1776, at the solicitation of Lord Howe, to confer with
him under authority given him, as Commander-in-Chief
of America, by the Act Prohibiting Trade and Inter-
course with America. These Commissioners, und^r the
Instructions of Congress, refused to confer ex^pt as
Commissioners of the Union, and the conferen^came
to an end.
The American Empire Declared, 1778 377
From the moment the French Treaties were signed,
therefore, the American Union existed as an independent
State dejure, for all international and Imperial purposes,
and the American Empire existed in posse.
Had the American Empire rested wholly upon the
foundation of the Declaration contained in the Treaty of
Alliance, its character as a federal organism might well
have been open to question. The contemporaneous
public statement made by the Congress, however, on
rejecting the proposals of the British Government for
conciliation, in which were announced the principles
which the American Union believed to be the true prin-
ciples on which the administration, by any State, of its
dependencies ought to be based, limited the meaning
of the expression "dependent upon the United States'*
in the Treaty of Alliance, so that the American Union
was thereafter inevitably and forever committed to the
establishment of an American Empire which should be a
federal organism. The proposals of the British Govern-
ment and the action of the Congress upon them were,
therefore, of such importance as facts bearing on the
Constitution of the American Empire, that it is neces-
sary to go into the history of them with some care. The
facts were as follows:
The British Government, upon receipt of the news of
the signing of the French Treaties, set themselves in
earnest to the work of conciliation which they had had
for some time under consideration. Copies of the Bills
agreed upon by the Ministry were sent, so as to arrive in
advance of the Treaties, to Sir Henry Clinton, who had
been appointed to succeed Lord Howe, as Commander-
in-Chief of the British forces in America. The Bills
were printed and authenticated by order of the British
Commander-in-Chief, and were circulated in Philadelphia
and elsewhere. General Washington sent printed copies
of these Bills to Congress, which was then sitting at
378 The Administration of Dependencies
York, and they were laid before that body on April 21,
1778. At that time Congress had no knowledge of
the French Treaties, their first knowledge of them being
obtained when the messenger arrived with them from
France on May 2. They therefore regarded the drafts
of Bills as containing an informal proposition from the
British Commander-in-Chief under the Act Prohibiting
Trade and Intercourse with America, and realizing that
tlie Colonies were as yet only States de facto ^ being with-
out international recognition, they considered the propo-
sition on its merits — for this purpose referring the drafts
of Bills to a committee of which Gouverneur Morris was
made the chairman.
As Morris was the author of the clause in the Constitu-
tion of the United States relating to the administration
of dependencies, a special interest attaches to his connec-
tion with the proceedings of Congress in rejecting the
British proposals, considering in how vital a manner this
action of Congress related to the American Empire, Mor-
ris was, at that time, a delegate from the State of New
York, having been elected in the year preceding, when he
was only twenty-five years of age. He was a member of a
family which for many years had held a high social po-
sition in the city of New York, and which was noted for
its conservatism. He had travelled extensively abroad as
a young man, was a fine French scholar, and, as an ardent
patriot, had, from the very first, thrown himself into the
study of the true theory of the relationship between Great
Britain and the Colonies. As a member of the New
York Convention of 1774, he had had an important,
if not a leading part in bringing about the adoption of
very conservative resolutions — equalled, indeed, in their
conservatism, only by those of Pennsylvania, drafted by
Dickinson — which based the whole power of Great Britain
over the Colonies upon "necessity" and the nature of
things, by the declaration: ** That, /r^w the necessity
The American Empire Declared, 1778 379
of the case. Great Britain ought to regulate the trade of
the whole Empire for the general benefit of the whole,
and not for the separate interest of any particular part."
He was a firm believer in a strong, dignified and orderly
government. Upon his election to Congress, he im-
mediately became a leader, especially in matters involv-
ing the foreign relations of the Union. As chairman of
the committee appointed to report on the informal propo-
sition contained in the published drafts of the Bills for
Conciliation, he wrote the report of the committee, and
the report was adopted by Congress.
The first Bill was entitled **A Bill for Declaring the
Intentions of the I^arliament of Great Britain, concerning
the Exercise of the Right of Imposing Taxes within his
Majesty's Colonies. Provinces and Plantations in North
America." By the terms of this Bill it was to be
"declared and enacted**:
That from and after the passing of this Act, the King and
Parliament of Great Britain will not impose any duty, tax or
assessment whatsoever, payable within any of his Majesty's
Colonies, Provinces and Plantations in North America, except
only such duties as it may deem expedient to impose for the
regulation of commerce ; the net produce of such duties to be
always paid and applied to and for the use of the Colony,
Province and Plantation in which the same shall be respec-'
tively levied, in such manner as other duties collected by the
authority of the respective General Courts, or General As-
semblies, of such Colonies, Provinces or Plantations, are
ordinarily paid and applied.
The second Bill was entitled "A Bill to Enable his
Majesty to Appoint Commissioners with Sufficient
Powers to Treat, Consult and Agree upon the Means of
Quieting the Disorders now Subsisting in Certain of the
Colonies, Plantations and Provinces of North America."
38o The Administration of Dependencies
It provided for the appointment of Commissioners by the
King with the following powers:
To treat, consult and agree with such body or bodies politi-
cal and corporate, or with such assembly or assemblies of men,
or with such person or persons, as in their wisdom and discre-
tion they shall think meet, of and concerning any grievances
or complaints of grievances existing or supposed to exist in the
government of any of the said Colonies, Provinces or Planta-
tions respectively, or in the laws and statutes of this Reahn
respecting the same ; and of and concerning any aid or con-
tribution to be furnished by all or any of the Colonies, Prov-
inces or Plantations respectively, for the common defence of
this Realm and the dominions thereunto belonging; and of
and concerning such other regulations, provisions, matters and
things, as upon mature deliberation of the said Commissioners
shall be thought necessary and convenient for the honor of his
Majesty and the common good of all his subjects: Provided,
also, and be it further enacted and declared. That no regula-
tion, provision, matter or thing so proposed, treated, consulted
or agreed, shall have any other force or effect, or be carried
further into execution, than is hereinafter mentioned and pro-
vided, until the same shall have been approved by Parliament
By the proposed Bill, the Commissioners were to have
power to proclaim a suspension of hostilities and to sus-
pend the operation of all or any of the Acts of Parliament
relating to the Colonies passed since the close of the war
in 1763, to grant pardons, and to appoint in each Colony a
Governor and Commander-in-Chief, **to have, hold and
exercise, during his Majesty's pleasure, the said offices of
Governor and Commander-in-Chief in and for such Col-
ony or Plantation respectively, with all such powers and
authorities as any Governor of such Province heretofore
appointed by his Majesty might or could have exercised.* -
In the report of the committee submitted the next day
— April 22, 1778 — which was adopted by Congress, it was
The American Empire Declared, 1778 381
recommended that the propositions contained in the Bills
be rejected for the following reasons, among others:
The first of these Bills appears, from the title, to be a de-
claration of the intentions of the British Parliament concerning
the exercise of the right of imposing taxes within these States.
Wherefore, should these States treat under the said Bill, they
would indirectly acknowledge that right, to obtain which
acknowledgment the present war has been avowedly under-
taken and prosecuted on the part of Great Britain.
Should such pretended right be acquiesced in, then, of con-
sequence, the same might be exercised whenever the British
Parliament should find themselves in a different temper and
disposition; since it must depend upon those and such like
contingencies, how f^r men will act according to their former
intentions.
That the said first Bill, in the body thereof, contains no new
matter, but is precisely the same with the Motion before-
mentioned [Lord North's Proposals of 1775], excepting the
following particular, viz., that by that Motion actual taxation
was to be suspended so long as America should give as much
as Parliament might think proper: Whereas, by the proposed
Bill, it is to be suspended as long as future Parliaments con-
tinue of the same mind with the present.
From the second Bill it appears that the British King may,
if he pleases, appoint Commissioners to treat and agree with
those whom they please about a variety of things therein men-
tioned; but such treaties and agreements are to be of no
validity without the concurrence of the said Parliament, ex-
cept so far as they relate to the suspension of hostilities and
of certain of their Acts, the granting of pardons, and the ap-
pointing of Governors to these sovereign, free and indepen-
dent States. Wherefore, the said Parliament have reserved to
themselves, in express words, the power of setting aside any
such treaty and taking advantage of any circumstances which
may arise to subject this continent to their usurpations.
The inhabitants of these States being claimed by them as
subjects, they may infer, from the nature of the negotiation
382 The Administration of Dependencies
now pretended to be set on foot, that the said inhabitants
would of right be afterwards bound by such laws as thej
should make. Wherefore any agreement entered into on such
negotiation might at any future time be repealed.
The Bills were introduced into Parliament by Lord
North on February 17, and were passed on March 9.
The first Act differed from the draft in the respect that it
was entitled : ** An Act for Removing all Doubts and Ap-
prehensions concerning Taxation by the Parliament of
Great Britain in any of the Colonies, Provinces and Plan-
tations in North America and the West Indies,'* and that
it contained a clause repealing the duties on tea.
The second Act differed from the draft in the respect
that the general clause in the draft, authorizing the Com-
missioners to treat concerning "any other regulations,
provisions, matters and things, necessary or convenient
for the honor of His Majesty, and for the common good
of all his subjects," was changed so that they vrere given
power to treat concerning "any other regulations, pro-
visions, matters and things, necessary or convenient for
the honor of his Majesty and his Parliament^ and for the
common good of all his subjects'* — thus prohibiting the
Commissioners from conducting any negotiations which
did not proceed upon the basis that Parliament had some
power in the Empire. With the two Conciliatory Acts
was enacted a separate Act repealing the Act of 1774.
which had deprived the Province of Massachusetts Bay of
its elected House of Representatives.
The Declaratory Act of 1 766, which declared the power
of Parliament to pass laws to bind the Colonies and their
inhabitants **in all cases whatsoever," it was decided,
after discussion in Parliament, not to repeal.
After the passage of the Conciliatory Acts, the text of
the French Treaties was made known by the Ministry to
Parliament, and the question was raised of authorizing
The American Empire Declared, 1778 383
the Commissioners to acknowledge the independence of
the American States, it being perceived at once that the
Congress would, in all probability, insist on that condi-
tion. Many who favored giving this authority to the
Commissioners were influenced by the economic theories
of Adam Smith, contained in his Inquiry into the Nature
and Causes of the Wealth of Nations^ published in 1776.
In this work the mercantile system was denounced in toto,
and universal free trade advocated. This extreme and
radical view of the economic relationship between Great
Britain and the American Colonies naturally led Smith to
take an equally extreme and radical view of the political
relationship. He advocated absolute independence for
the Colonies, or if this were impracticable, the absolute
incorporation of their lands and populations into the land
and population of Great Britain, by granting them repre-
sentation in Parliament, proportioned to their contri-
butions to the Imperial defence and welfare. The latter
alternative was substantially Pownall's plan, which, upon
its proposition in 1768, had been immediately rejected
both by Great Britain and the Colonies.
Lord Chatham, on the day when this proposition was
to come up in the House of Lords, — April 7, — had him-
self carried to the House from a bed of sickness and suf-
fering, and after making a magnificent protest against
the proposed dismemberment of the British Empire, fell,
stricken by apoplexy, as he rose to reply to his opponents.
His death occurred about five weeks later — on May 11.
Lord Chatham was consistent to the last. In the previ-
ous November he had moved in the House of Lords an
Address to the King for a cessation of hostilities in Amer-
ica, carefully limiting the purpose of it to the restoration
of the relationship of dependency which existed in 1763.
On that occasion he said :
My Lords, no man wishes for the due dependence of Amer-
384 The Administration of Dependencies
ica on this country more than I do. To preserve it, and not
confirm that state of dependence into which your measures
hitherto have driven them, is the object which we ought to
unite in attaining. ... In a due constitutional depend-
ency, including the ancient supremacy of this country in
regulating their commerce and navigation, consists the mutual
happiness and prosperity both of England and America.
On June 10, 1778, the three British Commissioners, the
Earl of Carlisle, William Eden, and George Johnstone,
sent to Congress copies of the Conciliatory Acts and of
their Commission, together with a letter signed by them,
which were received by Congress on June 13. In this
letter the Commissioners spoke of the French Treaties as
"the insidious interposition of a power which has, from
theiirst settlement of these Colonies, been actuated with
enemity to us both," and proposed that the United
States rescind the Treaties, because "it is notorious that
they were made in consequence of the plans of accommo-
dation previously concerted in Great Britain, and with %
view to prevent our reconciliation and to prolong this
destructive war." They proposed to enter into an "ar-
rangement " on the following basis:
To consent to a cessation of hostilities, both by sea and
land.
To restore free intercourse, to revive mutual affection, and
renew the common benefits of naturalization, through the
several parts of this Empire.
To extend every freedom of trade that our respective in-
terests can require.
To agree that no military forces shall be kept up in the dif-
ferent States of North America, without the consent of the
General Congress or particular Assemblies.
To concur in measures calculated to discharge the debts of
America, and to raise the credit and value of the paper cir-
culation.
To perpetuate our union by a reciprocal deputation of an
The American Empire Declared, 1778 385
Agent or Agents from the different States, who shall have the
privilege of a seat and voice in the Parliament of Great Brit-
ain; or, if sent from Britain, in that case to have a seat
and voice in the Assemblies of the different States to which
they may be deputed respectively, in order to attend the
several interests of those by whom they are deputed.
In short, to establish the power of the respective Legislatures
in each particular State to settle its revenue, its civil and mili-
tary establishment, and to exercise a perfect freedom of legis-
lation and internal government, so that the British States
throughout North America, acting with us in peace and war
under one common Sovereign, may have the irrevocable en-
joyment of every privilege that is short of a total separation of
interests or consistent with that union of force, on which the
safety of our common religion and liberty depends.
To this the Congress, through the President, replied
on June 17:
Nothing but an earnest desire to spare the further effusion
of blood could have induced [the Congress] to read a paper
containing expressions so disrespectful to his most Christian
Majesty, the great and good ally of these States ; or to con-
sider propositions so derogatory to the honor of an independent
nation.
The Acts of the British Parliament, the Commission from
your Sovereign, and your letter, suppose the people of those
States to be subjects of the Crown of Great Britain, and are
founded on the idea of dependence, which is utterly inad-
missible.
The letter concluded by stating the disposition of
Congress to negotiate regarding "a treaty of peace and
commerce, not inconsistent with treaties already subsist-
ingy'* when Great Britain should withdraw its fleets and
armies or should explicitly acknowledge the independence
of the States.
To this the Commissioners replied in a letter received
as
386 The Administration of Dependencies
in Congress June iS, 1778, in which they said, speaking
of the requirement that as preliminary, to any n^otia-
tion, the independence of the States should be acknow-
ledged :
We are not inclined to dispute with you about the meaniDg
of words ; but so far as you mean the entire privilege of the
people of North America to dispose of their property, and to
govern themselves without any reference to Gf eat Britain, be-
yond what is necessary to preserve that union of force in
which our mutual safety and advantage consist, we think that,
so far, their independency is fully acknowledged in the tenns
of our letter of the loth of June. And we are willing to enter
upon a fair discussion with you, of all the circumstances that
may^ be necessary to ensure or even to enlarge that indepen-
dency.
• ••••• «.
We assure you that no circumstance will give us more satis-
faction than to find that the extent of our future connection is
to be determined on principles of mere reason and the con-
siderations of mutual interest, on which we are willing likewise
to rest the permanency of any arrangements we may form.
Congress immediately resolved **that no answer be
given to the letter of the British Commissioners."
The Commissioners, on October 3, 1778, issued a
"Manifesto and Proclamation " to be transmitted to the
Assemblies of the respective States, in which they said:
To the members of the Congress, we again declare that we
are ready to concur in all satisfactory and just arrangements
for securing to them and their respective constituents the re-
establishment of peace, with the exemption from. any imposition
of taxes by the Parliament of Great Britain, and the irrevoc-
able enjoyment of every privilege consistent with that union
of interests and force on which our mutual prosperity and the
safety of our common religion and liberty depend.
. i
The American Empire Declared, 1778 387
In the Proclamation, it was claimed that the Congress
should have transmitted the proposals of the Commis-
sioners to the General Assemblies of the several States.
The French Treaties were referred to as "pretended for-
eign treaties which [the Congress] know are delusively
framed in the first instance, and which have never yet
been ratified by the people of this continent."
To the General Assemblies of the several States it was
declared :
We offer to the Colonies at large, or separately, a general or
separate peace, with the revival of their ancient Governments,
secured against any future infringements, and protected for-
ever from taxation by Great Britain. And, with respect to
such farther regulations, whether civil, military, or commer-
cial, as they may wish to be framed and established, we prom-
ise all the concurrence and assistance that his Majesty's
Commission authorizes and enables us to give.
The Proclamation contained an offer of amnesty and
pardon on yielding submission. It was, by its terms, to
be in in force forty days — until November ii, 1778.
As soon as this Proclamation was brought to the atten-
tion of Congress, they issued a "Manifesto and Proclama-
tion*' in reply, which was practically a general denial that
the Commissioners had ever made or could make a propo-
sition which, if accepted, would have the result which
they had claimed in their Manifesto; and, on October
26, 1778, Congress appointed a committee consisting of
Gouvemeur Morris, as chairman, and William Henry
Drayton and Richard Henry Lee, "to superintend the
publication of such matters relating to the disputes, pe-
titions and negotiations to and with the Court of Great
Britain, and such notes and explanations thereon, as to
them shall appear proper."
As chairman of this committee, Morris prepared a
statement which, when printed, made a pamphlet of 122
388 The Administration of Dependencies
pages. The pamphlet was entitled Observations on the
American Revolution^ and set out in detail all the Acts of
Parliament and Congress, explaining their bearings one
on the other, and showing that the denial by Great Britain
of all moral or legal obligation in the exercise of its power
over the Colonies, contained in the Declaratory Act of
1766, which it was not proposed to repeal, stood in the
way of any dignified relationship between that State
and the Colonies.
From this pamphlet it is made clear beyond a doubt that
the American States were willing, at all times, to treat
for a return to a position of dependence on the State of
Great Britain, on the terms that the British Empire
should be declared to be a federal organism. After the
French Treaties were signed on February 6, 1778, and
especially after they were ratified on May 5, 1778, the
Union, and its component States, were independent
States ^ry«r^* by international recognition, and could not
have treated for a return to dependence except on the
basis that the international obligations assumed by those
Treaties should be fulfilled. The statement of Congress
on this subject was as follows:
It is to be observed, that a circumstance had intervened
between the resolutions of the 22nd of April and the receipt
of the letter from the Commissioners. This was the arrival oi
the copies of Treaties entered into with his most Christian
Majesty [the King of France], which was the first intelligence
which had been received from Europe in the space of a year.
The resolutions of the House, therefore, on the 22nd of April
were founded simply on the firm determination, under no
change of fortune whatever to recede from the Declaration of
Independence of July, i776,and for this reason^as a preliminarr
to any treaty, it was required that Great Britain should either
acknowledge our independence or withdraw her fleets and
armies, because upon no other principle could America be said
to possess that degree of equality and freedom which is essential
The American Empire Declared, 1778 389
to the validity of national compacts. The Treaty with France
being out of the question, had these preliminaries been com-
plied with, we should have been bound in honor ^ as we certainly
were by inclination and the principles of humanity y to enter upon
a conference for the purpose of sheathing the sword. But since
by that Treaty the United States could not, upon a certain
contingency, make either peace or truce without the consent
of her ally, it became necessary to provide that any treaties to
be made should not be inconsistent with the Treaties already
subsisting.
In this pamphlet, the proposals of the Commissioners
were taken up separately and criticised. Parliamentary
regulations of trade, it was claimed, would inevitably be
unfair to the Colonies and in the interest of Great Britain.
The proposition not to keep a military force in America
without the consent of Congress or the Colonial Assem-
blies was objected to because one Parliament could not
bind a succeeding Parliament in this respect. The
proposition concerning the debts of the Colonies was de-
clared to be insufficient because furnishing no security
that they would not ultimately be required to participate
in the payment of the British debts. The proposition to
allow reciprocal representation of Great Britain in the
Colonial Assemblies and of the Colonies in* Parliament
was denounced in the following language:
The fourth offer is ... to perpetuate our slavery, by
taking from us, on the one hand, the objection against their
tyrannous acts, that we were not represented in the Legislature
which passed them, though in fact such representation would
be merely illusory and ineffectual; and on the other, by send-
ing Ministerial Agents, artful, plausible and wicked, to influ-
ence the debates of our Legislatures, and give a voice among
the immediate representatives of the people on matters even
of the most internal nature. No greater insult was ever of-
fered to the common sense of mankind. Had the proposal,
particularly the latter part of it, been made before the
390 The Administration of Dependencies
commencement of the contest, it was sufficient in itself to
have roused us to arms.
The proposition to establish the powers of the Colonial
Legislatures in certain respects was objected to because
the claim of unconditional and unlimited power of Parlia-
ment was not given up, and a subsequent Parliament
might overturn any Colonial legislation.
All these objections reduced themselves to two — that
the Colonies would never consent to form component
parts of the British Empire, so long as Great Britain
claimed unconditional and unlimited power over them,
and that they would never, under any circumstances,
consent to be represented in the House of Commons or
to have Great Britain represented in the Colonial Houses
of Representatives. This was simply another way of
saying that the States of the American Union would
never again become component parts of the British Em-
pire, unless that Empire was declared to be a federal
organism, of which the States of the Union were Member-
States, and would never, under any circumstances, consent
that their lands and populations should be merged with
the land and population of Great Britain.
The proposition of the British Government was a
proposition to convert the British Empire into a decen-
tralized unitary organism — that is, into an organism in
which the dependencies would derive all their rights from
the will and grant of the Parliament of Great Britain, (not
from the nature of things), but in which the general
principle of local self-government would be recognized,
so far as the Parliament saw fit. The American Union,
through its Congress, insisted that the rights of the
American Colonies were natural rights to be political per-
sons, that is, States, and were not derived from the will
and grant of the Parliament or the State of Great Britain;
and that the only power of Great Britain was to adiudi-
The American Empire Declared, 1778 39^
cate and execute the unwritten Constitution of the Em-
pire, which defined the character and extent of their
rights, as States ; and therefore refused to assent to be-
come parts of the British Empire on the terms proposed.
The negotiation resulted in the perception of the great
and fundamental distinction upon which the whole con-
ception of the Federal Empire was based — the distinction
between conditional and limited power. The power of
the Imperial State in the Federal Empire was recognized
as being not a limited, but a conditional power, by de-
fining the "subjection " of the American Colonies to
Great Britain to be a "conditional subjection."
The whole philosophy of the Federal Empire, as a po-
litical organism, was summed up in the first pages of the
pamphlet in the following words :
The right of a State over its own members has been brought
into question; and there are not wanting authorities to show
that citizens who renounce allegiance and protection may fly
from the territories of the State, and erect new independent
Governments in new countries. Be this as it may, the point
is clear, that when the consent of Government is obtained,
the individuals are again in a state of nature; alike free either
to submit to a society existing, or to establish one, as their in-
terest or their inclination may prompt. Here then is the
situation of those who, wearied with the contentions and
oppressions of the old world, boldly threw themselves upon
the protection of Providence to explore the new, and traversed
the ocean to inhabit a wilderness amid nations of barbarous
foes. These first adventurers, inspired by freedom, supported
by industry, and protected by Heaven, became inured to toil,
to hardship, and to war. In spite therefore of every obstacle,
they obtained a settlement; and then turned their attention
to the security of those equal rights for which they had en-
countered so many perils and inconveniences. For this
purpose they framed independent Constitutions; and these,
however different in form, were all inspired by the same spirit,
392 The Administration of Dependencies
and all founded on that eternal maxim of free Govemmenti,
that no man can be bound by laws to which he does not con-
sent. These little republics soon began to flourish with i
vigor and beauty adequate to the radical energy of their first
principle. Of consequence they became a desirable object to
that genius of enterprise which had animated the monarchies
of Europe. On the other hand, their weakness required some
ancient trunk to support them for a while in the storm oC
ambition. Our ancestors, therefore, stimulated by their neces-
sities, and seduced by ancient habits and the remembrance
of former friendships and connections, were easily prevailed
on to subject themselves to the King of England, in conse-
quence of his solemn promise to afford them protection, in
common with all his other subjects, against foreign force and
internal violence. The British Colonies then, under that
name, were in fact so many independent States, whose only
political connection with each other, and with the several
parts of the British Empire, was by means of a common
Sovereign.
As a free people, we could not be bound by the arbitrary
edicts of the Prince: by still stronger reasons we could not be
bound by the more arbitrary edicts of our fellow-subjects:
and of consequence, although the Prince and our fellow-
subjects should join against us whatever force they might
acquire, they could acquire no right by the union.
We had, on every principle, a right to become indepen-
dent, particularly if the Crown should violate those contracts
which formed the basis of a union. For let us suppose that
when our ancestors quitted Europe, they went on the general
principle of disclaiming allegiance to and protection from the
several States of which they were subjects, or that they came
hither with the permission of those States, and even under a
contract with the King of England. And when they arrived
here, let us suppose that they established independent Govern-
ments which afterwards became subject by agreement or that
a conditional subjection was interwoven in their frame— still
the existence of the contract remains unimpeached * or even
The American Empire Declared, 1778 393
on a supposition that they had actually bargained for uncon-
ditional submission, still that bargain would have been from
its very nature void as to them, or if not to them, at least to
their offspring; and of consequence from the principle of all
free societies, the contract will still result. And it being evi-
dent that the two countries not only had not, but really could
not have (on free principles) any political connection but
thro' the Prince, so that right [of resistance to arbitrary power]
exercised in the Revolution of England, demonstrated since,
and generally admitted, must necessarily draw with it the
right to independence, which is above stated.
This statement may thus be summarized :
If the Colonies were, from the first instant of their settle-
ment, independent States (which was the anti-Imperialist
theory held by the American radicals), their subjection to the
State of Great Britain was necessarily the result of a contract
between them and the State of Great Britain, which, being
made between free and equal political persons, and intended
to create a permanent relationship between them, was con-
clusively presumed to have been made on terms just and
beneficial to both. Their continuance in the relationship of
subjection was, therefore, conditional upon both parties agree-
ing concerning the just terms of the contract, or, in case of
disagreement, upon a just and impartial adjudication of its
terms and a fulfilment of the contract, as so adjudicated, by
the State of Great Britain.
If the Colonies were, from the first instant of their settle-
ment, dependent States — if "a conditional subjection was
interwoven in their frame " — (which was the Federal- Imperial-
ist theory held by the American conservatives), their sub-
jection was under a contract " implied in fact," that is, implied
from the circumstances, upon the same terms as would have
been agreed upon by the parties, had they treated on an
equality, and was conditional in exactly the same way as if the
contract had been between equal parties.
If the Colonies were States which, at the time of their settle-
ment, agreed to unconditionally subject themselves to the will
394 The Administration of Dependencies
of the State of Great Britain (which was the theory of the
British Government), this contract was either entirely void, or
void as to the successors of those who made it, and a contract
*' resulted,*' that is, was implied by law and justice, out of the
existing circumstances, as the result of the avoidance of the
original contract, on the same terms as would have been agreed
upon by the parties had they treated on an equality. Their
subjection in this case, also, was conditional in exactly the
same way as if the contract had been between equal parties.
The relationship was therefore not through the King as i
natural person, who, in case of disagreement between the
parties concerning the terms of the various contracts and the
common contract, forming the Constitution of the Empire,
could only exercise the influence of a friendly third person or
Mediator, but through the King in his official capacity — ** the
Prince " or " the common Sovereign," as Morris expressed it—
who had actual power in adjudicating the terms of the con-
tracts forming the Constitution of the Empire, as the Disposer
of the affairs of the Empire, and of executing them on betalf
of the State of Great Britain, by analogy to the power of
making, interpreting and executing treaties with foreign States,
which he exercised as the expert part — the Crown — of the
State of Great Britain.
As the Parliament of Great Britain was not mentioned
in this statement, it was necessarily implied that its only
power was to effectuate, by rules and regulations in
the form of laws, the adjudications of the Crown con-
cerning what was needful to be done by Great Britain,
as the Imperial State, in the performance of its part of
the contract with the Colonies, as Member-States, and
that it had no direct power to interpret or change the
contract, being from its nature unfitted to perform func-
tions of a kind requiring expert knowledge and inves-
tigation. It was equally implied in the statement,
however, that the Colonial Assemblies could not inter-
pret or change the terms of this contract, they being
The American Empire Declared, 1778 395
likewise unfitted from their nature to perform functions
of this kind.
This definition of the "subjection ** of the Colonies as
a "conditional subjection** by Gouverneur Morris entitled
him to be regarded as the leader of thought in all matters
respecting the American Empire. He had gone deeper
than any one else, and had stated the universal principle.
The power of the Imperial State was conditional, he said,
over independent States which became dependent.
Hence it was conditional over States which were volun-
tarily dependent. It was conditional, he said, over those
which were dependent from their first settlement. Hence
it was conditional over colonies. It was conditional, he
said, even over States which had once accepted a relation-
ship of absolute and unconditional submission. Hence it
was conditional over conquests.
This conditional or contractual subjection which Morris
claimed was the ultimate result of every possible theory
of the original relationship between Great Britain and the
American Colonies was a conditional or contractual sub-
jection of them, as States — that is, a federal subjectiotty
since "federal " is the word particularly appropriated to
express the idea of "contractual "between States." The
final word of the American Union to Great Britain, there-
fore, was a Declaration that the States of the Union
would never consent to anything less than a federal sub-
jection to the State of Great Britain — that is, a contrac-
tual or conditional subjection, not of the inhabitants of
the States of the Union to the State of Great Britain, or
to its Government, or to its inhabitants,* but of the States
of the Union, as States, to the State of Great Britain.
By this Declaration, made almost contemporaneously
with the Declaration contained in the French Treaty, of
Alliance that the American Union proposed to hold its
conquests as dependencies, the American Union bound
itself and its successors, forever, by all the obligations
396 The Administration of Dependencies
of national good faith, to treat every community ex-
ternal to and connected with the Union, as a State in a
relationship of federal subjection.
The statement of the reasons upon which the Colonics
declared themselves independent contained in the Obsit-
vat ions on the American Revolution ^ and approved by
Congress, may be called the Declaration of Independence
of 1778. As a later document, it interprets and governs
the Declaration of 1776, where that document is ambigu-
ous, as it is in the much-discussed passage of the pream-
ble which states, as a self-evident truth, that, in order to
secure to the individual the natural rights of life, liberty,
and the pursuit of happiness, ** Governments are insti-
tuted among men, deriving their just powers from the
consent of the governed.**
This statement is capable of being interpreted as mean-
ing that Governments derive their just powers from the
mere will of the governed, or that they derive their just
powers from an agreement, compact, or contract {con-
sensus) between the Government and the governed. The
Declaration of 1778 settled this ambiguity, by declaring
that the theory of America was that all Governments de-
rive their just powers from an agreement, compact, or
contract between the Government and the governed.
The Declaration of 1776 stated the axiom of the original
freedom and equality of all human beings, and advanced
from that to the corollary that Governments derive their
just powers from the consent of the governed. The
Declaration of 1778 supplied the intermediate corollaries
between the axiom and that corollary. Because all men
were originally free and equal, it followed as a corollary
(since the proposition that a free and equal human being
could ever be subject to the mere will of another free and
equal human being is a self-evident contradiction and ab-
surdity), that all human relationships resulted from a
meeting of wills,— that is, from a compact or contract
t
The American Empire Declared, 1778 397
between the persons in relationship. As Governments
were human beings and the gbverned also human beings,
it necessarily followed that all relations between Govern-
ments and the governed were founded on agreement,
compact, or contract {consensus) between the Government
and the governed.
The Declaration of 1778 also declared that the contract
which was the basis of the relationship between the Gov-
ernment and the governed might (like every other con-
tract creating a human relationship) be express or implied
— and, in the nature of things, any contract may be
written or unwritten.
An agreement between the Government and the gov-
erned is a "Constitution " of government. Though writ-
ten Constitutions usually are given the unilateral form,
so that they appear as powers of attorney from the gov-
erned to the Government, they would more properly be
given the bilateral form. They are, in fact, given this
bilateral form when they provide for the formal accept-
ance, by the Government, of the Constitution, by re-
quiring the persons who form the Government to take an
oath to fulfil the Constitution.
The Declaration of 1778 admitted, by necessary impli-
cation, that, if the Constitution was reduced to writing,
the terms of the writing governed as in other cases of
contracts. If not, the contract was to be proved by the
words and acts of the parties or was to be implied out of
the circumstances, and in case of disagreement between
the parties concerning the interpretation of the contract,
or concerning what was just and reasonable, when the
parties left the terms indefinite, it was to be interpreted
and adjudicated by an impartial expert tribunal.
As applied to the American Empire, the statement in
the Declaration of Independence that, in order to secure
to the individual his natural rights, "Governments are in-
stituted among men, deriving their just powers from the
398 The Administration of Dependencies
consent of the governed," required that the State of
America (whether called by the name of "the American
Union," "the United States assembled/* or'*the United
States of America," or by any other name), when occu-
pying the position of the Government for other States, as
its dependencies, should regard itself as being in a rela-
tionship of constitutional connection with them, so that
all together would constitute a Federal Empire, in which
the American Union would be the Imperial State and
would act under an unwritten Constitution of the Empire,
supreme, for Imperial purposes, over its own Constitution
and the Constitutions of the Member-States, which it was
obligated to interpret, adjudicate, and execute, for the
benefit of all parties concerned.
Neither the Declaration of Independence of 1776 nor
that of 1778 had anything to say concerning the manner
in which the Government should be distinguished from
the governed. They did not say that Governments de-
rived their original existence from the will and act of the
governed, but only that they derived their ** just ** powers
from the "consent " of the governed. In both these in-
struments, the relationship of Government and governed
was taken for granted, and they were merely concerned
with declaring the duties of Governments. They there-
fore had nothing to say concerning whether, in a given
case, the American Union should or should not act as
the Government for other States. They declared, how-
ever, that if Great Britain had been willing to admit that
its powers over the American Colonies were exercised
under an unwritten Constitution securing to the Colonies
their rights as States, and to the inhabitants of the Colo-
nies their rights as individuals, and had in fact so exer-
cised them, its exercise of power over the Colonies would
have been just. As Great Britain had elected itself the
Imperial State of the British Empire, the Declaration of
Independence necessarily >mplied that the American
The American Empire Declared, 1778 399
Union might justly elect itself the Imperial State of the
American Empire if it saw fit, provided the American
Empire were recognized as a Federal Empire.
From the moment of the issuance of the Declarations
of Independence of 1776 and 1778, the obligations of the
American Union could not be fulfilled by merely grant-
ing to its dependencies, of its mere will and favor, local
self-government as municipal corporations, but could only
be fulfilled by recognizing them as States having, by the
nature of things, the fullest and most complete rights of
statehood consistent with the welfare of the whole Ameri-
can Federal Empire, composed of the American Union, as
the Imperial State, and its dependencies. How complete
the rights of statehood of the federally-subject States —
the Member-States of the American Federal Empire, —
should be, it was for the American Union, as the Imperial
State, to adjudicate, and by its dispositions, made by its
impartial and expert tribunal, fairly and after opportunity
of the federally-subject States to be heard, they were
bound, in equity and good conscience.
CHAPTER XXI
THE DISPOSITIVE POWER, 1 779- 1 783
THE Congress of the American Union came into ex-
istence as a body of delegates from the Colonies,
assembled to devise means for making an effectual
protest against the claims of Great Britain, as the Im-
perial State. After the Declaration of Independence, it
was continued by common consent, and without any ex-
press definition of its powers. What its powers were
could only be ascertained from a consideration of what the
powers of such an assembly, under such circumstances,
ought, in the nature of things, to be. There seems, how-
ever, to have been little doubt felt, in the Congress itself,
concerning the nature of its powers. It seems to have
been the unanimous sentiment that the Congress was the
successor of the King of Great Britain in his official ca-
pacity. It is beyond the limits of the study here under-
taken to show how this conception of the power of
Congress was applied as between the Congress and the
States of the Union, though that it was applied admits of
no doubt, — the powers given to Congress by the Articles
of Confederation being almost exactly those which the
King in Council exercised or had exercised in the State
of Great Britain. Bancroft, in his History of the United
States, has referred to this fact, in his chapter on the
Articles of Confederation. Prefacing his examination of
the Articles, he says:
According to the American theory, the unity of the Colonies
had, before the Declaration of Independence, resided in the
400
The Dispositive Power, 1 779-1 783 401
British King. The Congress of the United States was the
King's successor, and it inherited only such powers as the
Colonies themselves acknowledged to have belonged to
the Crown.
That the Congress regarded itself as authorized to
exercise the same powers over the dependencies of the
Union as were exercised by the King in Council over the
American Colonies prior to 1763 is proved by various
acts and documents.
The memorial of the Indiana Company filed September
14, 1779, asked that Congress direct an order against
Virginia
to stay the sale of the lands in question, till Virginia, as well as
the memorialists, can be heard before this honorable House
and the whole rights of the owners of the said tract of land
called Vandalia, of which Indiana is a part, shall be ascer-
tained in such a manner as may tend to support the Sovereignty
of the United States and the rights of individuals therein.
The committee of Congress reported, on the remon-
strance of Virginia, that they could not find ** any such
distinction between the question of the jurisdiction and
the merits of the cause, as to recommend any decision
upon the first separately from the last '* — in other words,
that the whole question was one of jurisdiction.
Franklin, in his memorial on behalf of the Vandalia
Company, filed in February, 1780, used the word ** Sov-
ereignty" to describe the power of the Union over the
Western region. His words were :
As your Honors have now succeeded to the Sovereignty of the
territory in question^ your memorialists confide that you will
think it just and reasonable to consider the said lands as sub-
ject to such contracts and dispositions as were made concerning
them while they confessedly belonged to the British Crown ;
and that your memorialists and their associates, who have ever
a6
402 The Administration of Dependencies
been ready to fulfil their parts of the said contract, may not
suffer such great injury by the charge of Sovereignty as to be
deprived of their equitable rights to the said lands.
He asked that the lands be granted to the persons in-
terested in the Vandalia Company either upon the terms
and conditions of their contract with Great Britain ap-
proved by order of the King in Council (which contract,
as has been said, was ready for delivery with the excep-
tion of affixing the seals when the Revolution broke out),
** or upon such other terms as may be convenient to the
interests of the United States and not injurious to your
memorialists and their associates."
The form of this memorial was exactly such as might
have been addressed to the King in Council before the
Revolution, and the word ** Sovereignty " plainly meant
the power which the King, as Sovereign, had previously
exercised and not " sovereign power" in the sense of
unlimited, unconditional power.
The first statement of the Congress on this subject was
contained in the Instructions given by it on October
17, 1780, to the Ministers Plenipotentiary of the United
States at the Courts of France and Spain, regarding the
claims of Spain to the Western region. These Instruc-
tions were reported by a committee consisting of James
Madison, John Sullivan of New Hampshire, and James
Duane of New York. Spain, on January 31, 1780,
through the French Minister, had expressed a willing-
ness to enter into a treaty of alliance with the United
States and France, providing the United States would ad-
mit that the western limits of the Confederation extended
only so far as there had been actual settlements from the
Colonies prior to the Proclamation of the King made in
1763, closing the Western region to settlement. Spain
based its claim on the propositions that the United States
had no possession of the region beyond those limits be-
The Dispositive Power, 1 779-1 783 403
fore the Revolution and that they could not claim *' in
the right of sovereignty of Great Britain " because they
had ** abjured the dominion " of that country.
To this the Ministers at the Courts of France and
Spain were instructed to reply that the Mississippi was
the boundary of the United States on the west because
*' by the definitive Treaty of Paris of 1763, Article
Seventh, all the territory now claimed by the United
States was expressly and irrevocably ceded to the King
of Great Britain ; and the United States are, in conse-
quence of the revolution in their government, entitled
to the benefits of that cession."
The Instructions then proceeded :
The first of these positions is proved by the Treaty itself.
To prove the last, it must be observed that it is a fundamental
principle in all lawful Governments, and particularly in the
Constitution of the British Empire, that all the rights of Sov-
ereignty are intended for the benefit of those from whom they
are derived, and over whom they are exercised. It is known
also to have been held for an inviolable principle by the United
States, while they remained a part of the British Empire, that
the Sovereignty of the King of England, with all the rights and
powers included in it, did not extend to them in virtue of his
being acknowledged and obeyed as King by the people of
England, or of any other part of the Empire, but in virtue of
his being acknowledged and obeyed as King of the people
of America themselves; and that this principle was the basis,
first of their opposition to, and finally of the abolition of his
authority over them. From these principles it results, that all
territory lying within the limits of these States, as fixed by the
Sovereign himself, was held by him for their particular benefits,
and musty equally with his other rights and claims in quality of
their Sovereign^ be considered as hatnng devolved on them^ in con--
sequence of their resumption of the Sovereignty to themselves.
As further evidence in support of the opinion of the
Congress that their powers were the same as those
404 The Administration of Dependencies
exercised prior to the Revolution by the King in Council,
there may be cited the report made on August i6, 1782,
of a committee consisting of Daniel Carroll of Mary-
land, Edmund Randolph of Virginia, and Joseph Mont-
gomery of Pennsylvania, appointed to report facts and
observations to be referred to the Secretary for Foreign
AflFairs, "to be by him digested, completed and trans-
mitted to the Ministers Plenipotentiary for negotiating
a peace, for their information and use." In their report,
the committee said :
If the vacant lands cannot be demanded upon the titles of
individual States, they are to be deemed to have been the propertj
of his Britannic Majesty^ as Sovereign of the thirteen Coiomes
immediately before the Revolution^ and to be devalved upon the
United States collectively taken. The character in which he
was so seized was that of King of the thirteen Colonies col-
lectively taken. Being stripped of this character, his rights
descended to the United States for the following reasons:
I. The United States are to be considered in many respects as one
undivided independent nation^ inheriting those rights tohich the
King of Great Britain enjoyed as not appertaining to any one par-
ticular State ^ while he was what they are noWy the Superintending
Gotfcrnor of the whole. 2. The King of Great Britain has
been dethroned as King of the United States, by the joint
efforts of the whole. 3. The very country in question has
been conquered through the means of the common labors of
the United States.
While this report was not adopted, it is evident that
it was not because it did not state the views of Congress,
but because it was not thought proper at that time,
while the States were still hesitating about ceding their
rights in the Northwest Territory, for Congress to take a
definite stand, which might prejudice the claims of the
States against the Union. There is every reason to be-
lieve that if the claims of the States had not at the
The Dispositive Power, 1 779-1 783 405
moment conflicted with those of the Union, this decla-
ration of the rights of the Union over the Northwest
Territory would have been unanimously adopted.
Gouverneur Morris, in a letter of January i, 1783, to
John Jay, who was then in Paris, 'and who was acting
with Adams and Franklin in negotiating the definitive
Treaty of Peace with Great Britain, said :
You and I diflFer about the Western country, but you and
your Sovereign are of the same opinion.
On September 13, 1783, while Congress was consider-
ing the report on the conditional cession of 178 1 made by
Virginia, and there appeared to be some probability that
it would yield to the conditions, Maryland presented a
remonstrance of its Legislature, in which it was declared :
The United States have succeeded to the Sovereignty oifer the
Western territory^ and are thereby vested as one undivided and
independent nation, with all and every power and right exercised
by the King of Great Britain over the said territory.
In the latter part of 1784 and the early part of 1785,
treaties were made with the Indians whereby a strip of
land constituting about the east quarter of the present
State of Ohio was opened to settlement by the extinguish-
ment of the Indian title. The principal one, which was
with the Wyandot, Delaware, Chippewa, and Ottawa
Indians, was expressed in language which showed that
the American Union regarded itself as a single nation,
acting as the Sovereign and Imperial State over the
Indian tribes, as native States, which stood to it in the
relationship of constitutional protectorates. The second
Article of the Treaty provided that :
The said Indian nations do acknowledge themselves and all
their tribes to be under the protection of the United States,
and of no other Sovereign whatsoever.
4o6 The Administration of Dependencies
John Jay, as Secretary for Foreign Affairs, on Octo-
ber 3, 1786, in a report to Congress concerning the right
of the States to interfere with the Execution of the pro-
visions of the Treaty of Peace, said :
The rights to make war^ to make peace ^ and to make treatiis
appertaining exclusively to the National Sovereign — that is^ to
Congress — your Secretary is of opinion that the thirteen State
Legislatures have no more authority to exercise these powers
or pass acts of Sovereignty on these points, than any thirteen
individual citizens.
On April 13, 1787, the Congress agreed to a letter,
drafted by Jay, to be sent to the Legislatures of the
States, in which it was said :
The thirteen independent sovereign States have, by express
delegation of powers, formed and vested in us a general,
though limited Sovereignty, for the general and national pur-
poses specified in the Confederation, In this Sovereignty they
cannot participate, except by their delegates, nor with it have
concurrent jurisdiction; for the ninth Article of the Con-
federation most expressly conveys to us the sole and exclusive
right and power of determining on war and peace and of
entering into treaties and alliances etc.
Treaties derive their sole obligation from being compacts
between tlu Sovereign of this and the Sovereign of another
Nation.
It seems, therefore, to be clear beyond a doubt that
the theory of the Congress and of the separate State
Legislatures was that the American Union v^as the
Sovereign — the Sovereign State — of the Western region,
and that the Congress, as the sole agent and representa-
tive of the Sovereign State, fulfilled its functions and
was, therefore, the effective and actual Sovereign of the
Western region. The power of the Union over this
The Dispositive Power, 1 779-1 783 407
region measured the power of the Congress over the re-
gion, on the theory that the Union could grant to the
Congress as its agent only such power as it itself had.
As all power exercised by a Sovereign was recognized as
being conditional power, the power of the Union, and of
the Congress as its agent and representative, over the
Western region, was recognized as being conditional —
that is, as being a power of disposition.
That the Congress regarded itself, at least from
the moment that the Articles of Confederation were
signed, as the constitutional Sovereign of the Union, ex-
ercising powers over the States of the Union, as persons,
and over their inhabitants, which were in their character
essentially judicial and conditional, is shown by the
names which they adopted, immediately upon the sign-
ing of the Articles of Confederation, to designate their
official acts. These names were ** ordinances " and
"resolutions." The former was used to designate those
actions of the Congress which were of general and public
interest, while the latter was used to designate those ac-
tions which related to matters of special or local interest,
or which expressed the sentiments of the Congress on
any subject.
The first action of the Congress which it described as
an ** ordinance " was taken on March 27, 1781, less than a
month after the Articles of Confederation were signed.
The preamble of this ordinance, which was entitled "An
Ordinance Relative to the Capture and Condemnation of
Prizes," was worded in such a manner as to show that the
Congress regarded its powers as essentially judicative.
It read :
The United States in Congress assembled, taking into con-
sideration the implacable war waged against them by the King
of Great Britain, zxi^ judging it inconsistent with their dignity
as a free and independent nation any longer to continue the
4o8 The Administration of Dependencies
indulgence and exemptions to any of the sabjects of t2s
enemy, who is absolutely bent upon their destmctioii oi Tt-
jugation, have thought it proper to ardaim and order ^ omi t L
hereby ordained and ord€red that henceforward general rernssis
be granted against the ships, goods and subjects of the F^^
of Great Britain.
The word "ordinance " is plainly a translation of the
French word ardonnance. The Grand Vocabulaire Fro-
foisj says that the word ardonnance came into commoa
use in 1287, during the time of Philippe le BeL It
adds that "it has been finally established in usage to
express in general every law made by the Sovereign (i
Prince^*' In another place it says:
Ordonnance is used particularly of the laws and constitutioos
of the Sovereign Prince {^Prince Souvercun) . . . Tbe
power of making new ordinances . . . and of changing
and modifying them, belongs in France to the King only.
But as one cannot pay too much attention to the framing of
ordinances, our Kings have the custom of taking the advice
of learned and distinguished persons who are of their CounciL
• • • • • • ,
The ancient ordinances were made in two ways: some were
resolved upon and decreed {arritUs) in the Privy and Secret
Council of the King; those which appeared to be more impor-
tant were deliberated {deliberies) in Assemblies of larger
number.
The Grand Vocabulaire gives as the original meaning
of \}[i^ ^oxA, ordonnance the following: "[Latin] *dispo-
sitio.' Disposition, arrangement {disposition^ arrange-
ment).*' It gives as the original meaning of the verb
ordonner, ''[Latin] 'disponere.' To arrange, dispose,
set in order {ranger, disposer, tnettre en ordre\**
The word "resolution " was a plain translation of the
French word ""arrSti,"" which meant, literally, a thing de-
The Dispositive Power, 1 779-1 783 409
termined upon after deliberation, by an assembly which
was advisory to the King, or by an administrative official
or body, as preliminary to administrative action. The
word **arrSt^** bore a close relationship to the word
*'arrSty'' meaning the judgment or decree of a court of
law or equity, both being derived from the same verb,
''arriter^'' meaning, literally, "to arrest or bring to a
stop," and derivatively, "to resolve, to determine, or to
decide."
The Congress, by adopting the words "ordinances "
and "resolutions ** to describe its acts, therefore, adopted
the French view that every act done by it as the Sov-
ereign was an act done in pursuance of an unwritten
supreme law, which it was under obligation to adjudicate
and execute.
The adoption of the expression "dispose of" to de-
scribe the power of the Union over its dependencies
seems to have come about in the following manner:
On May 21, 1779, Maryland, which was the only State
which at that time had not signed the Articles of Con-
federation, filed in Congress a Declaration, together with
Instructions to its delegates in Congress, adopted by its
Legislature. In the Instructions the Legislature said :
We are convinced, policy and justice require that a country
unsettled at the commencement of this war, claimed by the
British Crown, and ceded to it by the Treaty of Paris, if
wrested from the common enemy by the blood and treasure
of the thirteen States, should be considered as a common
property, subject to be parcelled out by Congress into free,
convenient and independent Governments, in such manner
and at such times as the wisdom of that Assembly shall here-
after direct.
Thus convinced, we should betray the trust reposed in us
by our constituents, were we to authorize you to ratify on their
behalf the Confederation, unless it be farther explained. We
. . . do instruct you not to agree to the Confederation,
4^o The Administration of Dependencies
unless an Article or Articles be added thereto in conformity
with our Declaration. Should we succeed in obtaining such
Article or Articles, then you are fully empowered to accede to
the Confederation.
. The word ** independent " cannot, of course, be read
literally. To parcel out a common property into inde-
pendent Governments, using ** independent '* in its
ordinary sense, is a self-evident absurdity, since the
conception of parcelling out is inevitably associated with
the idea of dependence. ** Independent '* here plainly
means ** conditionally dependent," or ** federally de-
pendent," and not ** wholly without dependence,"
which is its usual meaning. This same ambiguity in the
word *.' independent " will be noticed frequently in the
language of the period.
In the Declaration, the Legislature of Maryland said:
JVe will accede to the Confederation^ provided an Article or
Articles be added thereto^ giving full power to the United States
in Congress assembled to ascertain and fix the western limits
of the States claiming to extend to the Mississippi or South
Sea, and expressly reserving or securing to the Z/nited States a
right in common in and to all the lands lying to tfie Tvestwardof
the frontiers as aforesaid^ not granted to, surveyed for, or
purchased by individuals at the commencement of the present
war, in such manner that the lands be sold out, or otherwise
disposed of, for the common benefit of all the States.
These two statements made by the Legislature of
Maryland regarding the explanatory Article which Mary-
land wished to have added to the Articles of Confedera-
tion evidently cover the same ground. It seems clear,
therefore, that the Legislature of Maryland considered
that an Article which should provide that **the United
States in Congress assembled " should "dispose of** the
lands in the Western region "for the common benefit of
The Dispositive Power, 1 779-1 783 4^1
all the States," would include a power in "the United
States in Congress assembled" to "parcel out" that
region "into free, convenient, and independent Govern-
ments, in such manner and at such times as the wisdom
of that Assembly shall hereafter direct."
The description of the power of "the United States in
Congress assembled ** over the Western region as a power
to "dispose of " the "lands " in that region, was evidently
preferred by the Legislature of Maryland, because such a
power included the power both to dispose of the soil of
which the Union owned the primary title and to dispose
of the jurisdiction over the Western region, and it was
regarded as just and proper that, as the region was un-
settled, "the United States in Congress assembled" — that
is, the American Union, considered as a State, and as the
Imperial State of the American Empire — should have
the benefit arising from the sale of its primary title to the
soil. It was doubtless because of the fact that the Ameri-
can Union, as a State, owned the primary title to the
soil in the Western region, — it not having been appropri-
ated to private ownership, — that the word "lands" was
uniformly coupled with the expression "dispose of " in
the proceedings of Congress. Had the Western region
been in part appropriated to private ownership and in
part unappropriated, the Congress would undoubtedly
have used the expression "the territory and lands" —
"territory" having the meaning, as has been above no-
ticed, of lands appropriated to private ownership and
under the governmental control of the State.
It will have been noticed that Maryland, in its Instruc-
tions, demanded that the Articles of Confederation be
"explained." It demanded also that this explanation
should be by a "new Article or Articles." If, however,
the Articles had only to be "explained," a "new Article
or Articles" was unnecessary, since the proposition that
the Articles required explanation implied that they
412 The Administration of Dependencies
already contained an ambiguous or uncertain provisioo
on the subject, (which they undoubtedly did by provid-
ing for the admission of "Colonies'* into the Union in
Article XL), and it was the function of Confess to ex-
plain the Articles.
Congress acted upon the basis that the Articles cov-
ered the subject and that all that was necessary was to
''explain ** them, as regarded the Western region. With
this purpose, it adopted, on September 6, 1780, there-
port of a committee in which it was recommended that
Congress should "press upon those States which canr^
move the embarrassments respecting the western coun-
try a liberal surrender of their territorial claims, since
they cannot be preserved entire without endangering the
stability of the general Confederacy"; and Congress
thereupon resolved :
That is be earnestly recommended to those States who have
claims to the Western country, to pass such laws, and give theb
delegates in Congress such powers, as may effectually remove
the only obstacle to a final ratification of the Articles of On-
federation ; and that the Legislature of Maryland be earnestly
requested to authorize the delegates in Congress to subscribe
the said Articles.
Had the Congress acceded to the request of Maryland,
by adopting a new Article to be added to the Articles of
Confederation, this would have required the Articles, as
amended, to have been resubmitted to the Legislatures
of all the States, and would have opened the way for the
other States to demand other amendments. If the Ar-
ticles had only to be explained, that could be done
equally as well by a resolution of Congress as by a new
Article. The Congress, accordingly, on October 10,
1780, adopted the following resolution:
Resolved : That the unappropriated lands that may be ceded
or relinquished to the United States, by any particular State,
The Dispositive Power, 1 779-1 783 4^3
pursuant to the recommendation of Congress on the 6th day
of September last, shall be disposed of for the common benefit
of the United States, and be settled and formed into distinct
republican States, which shall become members of the Federal
Union and have the same rights of sovereignty, freedom, and
independence, as the other States; that each State which shall
be so formed shall contain a suitable extent of territory, not
less than one hundred nor more than one hundred and fifty
miles square, or as near thereto as circumstances will admit.
• •••••
That the said lands shall be granted or settled at such times
and under such regulations as shall hereafter be agreed on by
the United States in Congress assembled, or any nine or more
of them.
•
This resolution explained that Article XI. of the Arti-
cles of Confederation, which provided that "no other
Colony [except Canada] shall be admitted into the
[Union], unless such admission be agreed to by nine
States," included a Colony of the Union, and defined a
Colony of the Union as a "distinct State," which was
to be "disposed of" by the Congress, according to
"regulations " made by the Congress.
The resolution related simply to "the unappropriated
lands that may be ceded or relinquished to the United
States, by any particular State," and hence related ex-
clusively to the Western region. By the resolution, all
these general powers of the Union were carefully quali-
fied as respects this region. The right of disposition was
subject to the proviso that the disposition was to be "for
the common benefit of the United States," and with a
view to the ultimate admission of the Colonies into the
Union, as States, on equal terms with the rest. The
right of making regulations was qualified so that it ex-
tended only to regulations made relating to the granting
of the title to the soil or to the actual settlement of the
region. The right of statehood on the part of these
414 The Administration of Dependencies
Colonies in the Western region was subject to the proviso
that the statehood should be "republican ** in character,
— that is, that the people of each of these Colonies in
that region should be regarded as the ultimate depositary
of the political power for local purposes, and should
act through elected representatives.
If the resolution had been divided into two, one ex-
pressing the general principles and the other defining the
method of application of those general principles to the
Western region, the. one expressing the general prin-
ciples would have read as follows :
Resolved: That the American Union has the right, and is
subject to the obligation, to dispose of all lands and popuU-
tions external to it and subject to its control, it being under-
stood that this power of disposition includes the power of
regulation, and that it implies a right to statehood of all popu-
lations naturally adapted to exist as distinct States.
The resolution relating to the application of these gen-
eral principles to the Western region would have read:
Resolved: That in applying these principles to the Western
region, they shall be subject to the following modifications:
First: The power of disposition shall be exercised by the
Union so as not to be for the benefit of any particular State,
but so as to be for the common benefit of the Union and with
a view to fit the Colonies for ultimate admission into ihc
Union, as States, on equal terms with the other States.
Second: The power of disposition shall be construed as
giving the Congress the right to make only such regulations as
may be necessary for the orderly granting of the primaiy
title of the Union to the soil, and for effecting the original
settlement of the region.
Third: The right of the Colonies to be distinct States shaD,
for the protection of the Union, be subject to the proviso that
they shall all be republican States.
The Dispositive Power, 1 779-1 783 415
It was evidently the common understanding at the time
the resolution of October 10, 1780, was adopted, that it
applied to dispositions made by the Union of its juris-
diction over the Western region as well as to dispositions
made of its primary title to the soil of unoccupied lands.
Thus the deed of cession of the State of New York of
March i, 178 1, granted the ** right, title, jurisdiction, and
claim" of the State to the lands beyond the western
boundary of the State as described in the deed, ** to
and for the benefit of such of the States as are or shall be-
come parties to the Articles of Confederation. . . .
to be granted, disposed of, and appropriated in such
manner only as the Congress of the said United States
shall direct." The Act of cession of the State of Massa-
chusetts of November 13, 1784, authorized the Commis-
sioners who were to make the deed to impose the
condition that the land ceded should '* be disposed of for
the common benefit of the United States, agreeably to
a resolve of Congress of October 10, 1780"; and the
Commissioners, by their deed, ceded ** all right, title and
estate of and in, as well the soil as the jurisdiction, which
the said Commonwealth hath to the territory" ceded
. . . '* to the uses in a resolve of Congress of the
tenth of October, 1780, mentioned."
The committee of Congress appointed to consider the
questions which had arisen concerning the Western
country reported, on May i, 1782, in favor of accepting
the cession of the State of New York, holding that that
State had the best title to the soil and jurisdiction of the
Northwest Territory occupied by the Six Nations and
their tributaries, because ** all the lands belonging to the
Six Nations and their tributaries have been in due form
put under the protection of the Crown of England, as
appendant to the late Government of New York, so far
as xes'pects jurisdiction only," and that " the Crown of
England has always considered and treated the country
4i6 The Administration of Dependencies
of the said Six Nations and their tributaries, inhabiting
as far as the 45th degree of north latitude, as appendant
to the Government of New York." They concluded that
" by Congress accepting this cession, the jurisdiction (A
the whole Western territory, belonging to the Six Na-
tions and their tributaries, will be vested in the United
States." The power of the United States over the
region inhabited by Indians under the protection of the
United States was called "jurisdiction/* showing that
the committee considered the region occupied by the
Indian tribes as essentially a dependency, though under
the outward form of a protectorate.
There seems to have never been any question in Con-
gress but that the Congress was the successor of the King
of Great Britain both as respects the States of the Union,
and as respects the regions external to the Union and
subject to its control. Nor does there ever seem to have
been any question but that the power of the Congress, as
the Disposer of the affairs of the Union, extended only
to the making of rules and regulations for the common
interest and benefit of all the States of the Union, The
difficulty arose concerning the application of these prin-
ciples to the administration of the dependencies of the
Union. The party which in the years 1775 2^*^d 17;^
had been^the anti-Imperialist party on account of their
devotion to the principle of States* Rights, were inclined
to the opinion that the power of the Union over 'the
dependencies extended only to the making of disposi-
tions respecting them as if they were States of the
Union, and hence extended only to the making of regu-
lations concerning the common interests of the whole
political organism consisting of the States and the de-
pendencies of the Union. If the power of the Congress
was only this, it could make no regulations even for the
purpose of granting the title to the soil in the dependen-
cies or relating to the settlement of unoccupied regions
The Dispositive Power, 1 779-1 783 4^7
belonging to the United States, since it could cer-
tainly do neither of these things in any of the States.
The provision, therefore, in the resolution of October
10, 1780, that the lands in the Western region should be
'granted or settled at such times and under such regu-
lations " as should thereafter *'be agreed on by the
United States in Congress assembled, or any nine or
more of them," was a concession forced, by the necessity
of the case, from the anti-Imperialist party, and a yielding
by them, to that extent, to the Federal-Imperialist view.
When it came to be a question of the Congress making
regulations for other purposes than these, the anti-Im-
perialists evidently blocked the way. The disposition to
be made concerning the claims of the Land Companies
to portions of the Western region was forced upon the at-
tention of Congress by petitions of these Companies, in
1779 and 1780, and the Congress, by its committee, ad-
judicated these claims in 1783, and reported in favor of
recognizing them in part, but never made any regulation
"assigning territories" to them. So in the case of Ver-
mont, the Congress in 1784, on tlie application of Ver-
mont, adjudicated, by a committee, the question both
of its right to a distinct existence and of its boundaries ;
but, though a decision was made that it was entitled to a
distinct existence and though the boundaries were ascer-
tained, no regulation was made in execution of the adju-
dication. So far as the Indian tribes were concerned, the
power of disposition was exercised, under the provisions
of the Articles of Confederation, not through regulations
made by Congress in the form of legislation, but by regu-
lations made in the form of treaties with the tribes.
By the resolution of October 10, 1780, therefore, the
power of the Union, as the Imperial State of the Ameri-
can Empire, over its dependencies, was declared to be the
power of disposition — the dispositive power. The anti-
Imperialist party, however, evidently fearing that such
«7
4i8 The Administration of Dependencies
power exercised by a popular representative body liketae
Congress might, in practice, come to be virtually a povcr
of legislation with a mere pretence of previous adjudio-
tion, insisted that the power should be construed ^
strictly as possible against the Congress and against V£
Union, in so far as it included power to make rules asd
regulations in execution of adjudications. Thougii. c
joining in the resolution of October lo, 1780, the aoti-
Imperialists admitted that the power of disposition, froc
its very definition, implied the power to make rules and
regulations, they had at the same time succeeded in hir-
ing the power of regulation separated from the power 01
disposition, so as to leave it doubtful ivhether the r^o-
lations which were to be made in execution of the adju-
dications of Congress were to be made by the Congress
or made by the dependencies themselves. Since to allor
the dependencies to make such regulations was practically
to have no regulations made at all, the effect of the rtso>
lution of October 10, 1780, was, in fact, to give the Con-
gress power over the Western region only for the purpose
of granting the primary title to the soil and for tbe
purpose of colonizing the region. Thenceforward, the
question was whether or not the power of Congress to
regulate the Western region was a limited one so that,
although it was its duty to adjudicate all matters ari^ng
between the Union and the dependencies, it had power
to make rules and regulations only in a restricted class of
cases, — in a word, it became a question of the extent of
the regulative power of the Union over its dependencies
\
CHAPTER XXII
THE REGULATIVE POWER, I783-I787
THE committee of Congress appointed to consider
and report on the general policy to be pursued
toward the Western region, in their report made
October 14, 1783, proposed a resolution for the appoint-
ment of a committee to consider the expediency of
** laying out a suitable District within the said territory
and erecting it into a distinct Government," and recom-
mended that this committee be instructed, in case they
were in favor of laying out such a District,
to devise a plan for the government of the inhabitants and the
administration of justice, until their number and circumstances
shall entitle them to a place among the States of the Union^
when they shall be at liberty to form a Constitution for them-
selves, not inconsistent with the republican principles which
are the basis of the Constitutions of the respective States of
the Union.
A plan "for the government of the inhabitants and the
administration of justice ** in the Western dependencies
until they were admitted to the Union would have been
a plan based on the mere will of Congress. The Union
would have "governed" these dependencies during the
whole period that they were without representation in
Congress.
El bridge Gerry, of Massachusetts, proposed an amend-
ment to this resolution, which was adopted, and which
declared it to be the intention of Congress " to erect a
419
420 The Administration of Dependencies
District of the Western territory into a distinct Govern-
ment, as soon as circumstances shall permit, and "in
the interim to appoint a committee to report a plan,
consistent with the principles of the Confederation for con-
necting with t/te Union, by a temporary fartn of govern-
ment, the purchasers and inliabitants of the said District^
A plan "for connecting [the District] with the Union,
by a temporary form of government/' was a plan based
on the theory that a compact existed between the Union
and the District. It was not a plan to allow the popula-
tions in the Western region to form their own Govern-
ment and then enter into a treaty w^ith the Union
concerning the powers which it should exercise over
them. The temporary form of government was it-
self to be of such a kind as to "connect** the de-
pendencies with the Union, but "connection," by its
very definition, necessarily implies a contractual, that is,
a federal relationship.
The " circumstances " referred to in Gerry's resolution,
which were to permit the devising of a plan of govern-
ment, were a satisfactory cession by Virginia and the
extinguishment of the Indian title. The first of these
circumstances occurred on March i, 1784, when the ces-
sion of Virginia was accepted by Congress. A com-
mittee of Congress was immediately appointed to devise
a plan of government for the Western region, of which
Thomas Jefferson was the chairman, and David Howell,
of Rhode Island and Samuel Chase, of Maryland mem-
bers. On March 11, 1784, this committee reported a
resolution which, in an amended form, was adopted April
23, 1784, which became known as the Resolution of 1784
for the Government of the Northwest Territory. The
Resolution, after providing that the region to be ceded
by the States to the Union should be ** divided into
distinct States,*' which were described by boundaries,
made the following provisions for the "temporary and
The Regulative Power, 1 783-1 787 421
permanent Government'* to be established in the
ceded region :
The settlers within the territory so to be purchased [from
the Indians] and offered for sale shall, either on their own
petition or on the order of Congress, receive authority from
them, with appointments of time and place, for their free males
of full age to meet together for the purpose of establishing a
temporary Government, to adopt the Constitution and laws of
any of these States, so that such laws, nevertheless, shall be
subject to alteration by their ordinary Legislature, and to erect,
subject to like alteration, counties or townships for the elec-
tion of members for their Legislature.
Such temporary Government shall only continue in force in
any State until it shall have acquired twenty thousand free
inhabitants, when, giving due proof thereof to Congress, they
shall receive from them authority, with appointments of time
and place, to call a convention of representatives to establish
a permanent Constitution and Government for themselves ;
Provided^ That both the temporary and permanent Govern-
ments be established on these principles as their basis:
First: That they shall forever remain a part of this Con-
federacy of the United States of America.
Second: That they shall be subject to the Articles of Con-
federation in all those cases in which the original States shall
be so subject, and to all the acts and ordinances of the United
States in Congress assembled, conformable thereto.
Third: That they in no case shall interfere with the primary
disposal of the soil by the United States in Congress assembled,
nor with the ordinances and regulations which Congress may
find necessary for securing the title in such soil to bona fide
purchasers.
Fourth: That they shall be subject to pay a part of the
Federal debts contracted or to be contracted, to be appor-
tioned on them by Congress, according to the same common
rule and measure by which apportionment thereof shall be
made on the other States.
422 The Administration of Dependencies
Fifth : That no tax shall be imposed on lands the property
of the United States.
Sixth : That the respective Governments shall be republican.
Seventh: That the lands of non-resident proprietors shall
in no case be taxed higher than those of residents within any
new States, before the admission thereof to a vote by its dele-
gates in Congress.
The Plan provided that each of the new States in the
ceded region, under both the temporary and permanent
Government, was to be connected with the Union
through the medium of a delegate in Congress, who
was to have the right to debate, but not to vote. Such
a delegate corresponded almost exactly to the Colonial
Agent which each of the American Colonies, prior to the
Revolution, had sent to the British Court, to represent
the Colony diplomatically before the King in Council.
The Congress thus recognized itself as the Sovereign of
the American Union, at whose Court the dependent
States in the Western region were entitled to have diplo-
matic representatives.
The following clause was inserted at the end of the
Resolution :
The preceding Articles shall be formed into a Charter of
Compact, shall be duly executed by the President of the
United States in Congress assembled, under his hand and the
seal of the United States, shall be promulgated, and shall
stand as Fundamental Constitutions between the thirteen
original States, and those now newly described, unalterable
but by the general consent of the United States in Congress
assembled, and of the particular State within which such
alteration is proposed to be made.
Had a plan of government for the Western region been
adopted, according to which all the provisions were made
a "Charter of Compact " between the Confederation and
The Regulative Power, 1 783-1 787 423
each of the dependencies in that region, each of them
would have been recognized as a State, equal with and
independent of the Confederation, and as having granted
to the Confederation the right, license, or privilege of
performing services for the benefit of the dependency.
The adoption of such a plan of government would have
made it forever impossible for the Confederation to exer-
cise other powers than those granted unless the depend-
encies saw fit to make an additional grant of powers.
This would have been "States' rights" carried to the
extreme.
The Resolution recognized that the ** Districts" or
"States" in the Western region, until their admission
into the Confederation on equal terms, were ** Colonies"
within the meaning of Article XL of the Articles of
Confederation. It provided that :
Whenever any of the said States shall have, of free inhabi-
tants, as many as shall then be in any one the least numerous
of the thirteen original States, such State shall be admitted by
its delegates into the Congress of the United States, on an
equal footing with the said original States; after which the
assent of two-thirds of the United States in Congress assembled
shall be requisite in all those cases, wherein by the Articles of
Confederation the assent of nine States is now required; pro-
vided the consent of nine States to such admission may be
obtained according to the eleventh of the Articles of Confedera-
tion,
The eleventh of the Articles of Confederation was the
one which permitted the entrance of Canada into the
Union upon joining in the measures of the Confederacy,
and which provided that ** no other Colony shall be ad-
mitted into the same unless such admission be agreed
to by nine States."
In the Resolution as originally reported from the com-
mittee, the second condition was worded as follows :
422 The Administration of Dependencies
Fifth : That no tax shall be imposed on lands the propertj
of the United States.
Sixth : That the respective Governments shall be republican.
Seventh: That the lands of non-resident proprietors shall
in no case be taxed higher than those of residents within anv
new States, before the admission thereof to a vote by its ddc-
gates in Congress.
The Plan provided that each of the new States in the
ceded region, under both the temporary and permanent
Government, was to be connected with the Union
through the medium of a delegate in Congress, who
was to have the right to debate, but not to vote. Such
a delegate corresponded almost exactly to the Colonial
Agent which each of the American Colonies, prior to the
Revolution, had sent to the British Court, to represent
the Colony diplomatically before the King in Council
The Congress thus recognized itself as the Sovereign of
the American Union, at whose Court the dependent
States in the Western region were entitled to have diplo-
matic representatives.
The following clause was inserted at the end of the
Resolution :
The preceding Articles shall be formed into a Charter of
Compact, shall be duly executed by the President of the
United States in Congress assembled, under his hand and the
seal of the United States, shall be promulgated and shall
stand as Fundamental Constitutions between the thirteen
original States, and those now newly described, unalterable
but by the general consent of the United States in Congress
assembled, and of the particular State within which such
alteration is proposed to be made.
Had a plan of government for the Western region been
adopted, according to which all the provisions were made
a ''Charter of Compact " between the Confederation and
The Regulative Power, 1 783-1 787 423
each of the dependencies in that region, each of them
would have been recognized as a State, equal with and
independent of the Confederation, and as having granted
to the Confederation the right, license, or privilege of
performing services for the benefit of the dependency.
The adoption of such a plan of government would have
made it forever impossible for the Confederation to exer-
cise other powers than those granted unless the depend-
encies saw fit to make an additional grant of powers.
This would have been "States* rights'* carried to the
extreme.
The Resolution recognized that the ** Districts" or
•'States'* in the Western region, until their admission
into the Confederation on equal terms, were ** Colonies"
within the meaning of Article XI. of the Articles of
Confederation. It provided that :
Whenever any of the said States shall have, of free inhabi-
tants, as many as shall then be in any one the least numerous
of the thirteen original States, such State shall be admitted by
its delegates into the Congress of the United States, on an
equal footing with the said original States; after which the
assent of two-thirds of the United States in Congress assembled
shall be requisite in all those cases, wherein by the Articles of
Confederation the assent of nine States is now required; pro-
vided the consent of nine States to such admission may be
obtained accordiTig to the eleventh of the Articles of Confederal
Hon.
The eleventh of the Articles of Confederation was the
one which permitted the entrance of Canada into the
Union upon joining in the measures of the Confederacy,
and which provided that " no other Colony shall be ad-
mitted into the same unless such admission be agreed
to by nine States."
In the Resolution as originally reported from the com-
mittee, the second condition was worded as follows:
426 The Administration of Dependencies
This provision was inserted before the last clause of
the Resolution and hence was made a part of the "Char-
ter of Compact."
As the Resolution stood, even after Gerry 's amendment,
the moment a community in the Western region adopted
even a ** temporary Government," it was considered as a
distinct political personality, or State, external to the
Confederation, over which the Confederation had no
power except as such power had been g^ranted to it by
the express treaty made between it and the new State,
formulated in and evidenced by the Resolution.
The Resolution of 1784, therefore, was, as a whole, in
accordance with the anti-Imperialist theory that all rela-
tions between States are the result of an express contract
Had it ever gone into effect, it would have constituted
a written Imperial Constitution between the American
Union, as the Imperial State, and the dependencies in
the Western region, from the moment that they assumed
even temporary Governments, and would have given
the Union the same limited powers over them as it exer-
cised over the States of the Union, which powers, how-
ever, it could have exercised without any condition
whatever as to the manner of its exercise. For the dis-
positive power, it would have substituted a power of
managing the foreign relations of the dependencies, and
an exceedingly limited power to legislate for the com-
mon interests, as soon as even temporary Governments
should be formed by these dependencies.
The Resolution of 1784 was never put in force. Pro-
viding, as it did, that the communities in the Western
region should ultimately be admitted as States of the
Confederation on equal terms with the other States, in
which respect it conformed to the resolution of October
10, 1780, and the Virginia and Massachusetts deeds of
cession, a difficulty arose from the fact that the resolution
and deeds required that each State formed in the West-
The Regulative Power, 1 783-1 787 427
ern region should be not less than one hundred nor more
than one hundred and fifty miles square.
If the Northwest Territory alone had been divided into
States one hundred and fifty miles square, eleven States
would have been formed in it ; if of one hundred miles
square, twenty-five. The resolution of October 10, 1 780,
however, by which these maximum and minimum di-
mensions were fixed, related to all the Western region
which should be ceded by the States to the United
States, and promised to each State formed in the re-
gion admission into the Confederation on equal terms.
In that which was actually ceded, there could have been
formed twenty States one hundred and fifty miles square,
or forty-five one hundred miles square.
As the power to admit new ** States " was based on
Article XI. of the Articles of Confederation, a new
** State " could be admitted by vote of any nine States of
the Confederation. As soon as more than three new States
were added, the original States would have been at the
mercy of any coalition between these three and a min-
ority of themselves, and as soon as more than five new
States were admitted, even nine of the old States voting
together could not have prevented the admission of as
many new States as the remainder might have seen fit.
The original States were slow to adopt a plan which
seemed certain to throw the power into the hands of the
Western States. In the Resolution as amended on re-
committal and as adopted by Congress, the difficulty was
attempted to be cured by requiring each new State on
its admission to agree that no State should be subse-
quently admitted except by a vote of two thirds of the
States then members of the Confederation ; but this was
plainly an attempt to amend Article XL in an indirect
way, and its validity was doubtful.
It was doubtless largely owing to this difficulty that
the subject of the disposition to be made of the Western
426 The Administration of Dependencies
This provision was inserted before the last clause of
the Resolution and hence was made a part of the ** Char-
ter of Compact."
As the Resolution stood, even after Gerry *s amendment,
the moment a community in the Western region adopted
even a ** temporary Government," it was considered as a
distinct political personality, or State, external to the
Confederation, over which the Confederation had no
power except as such power had been granted to it by
the express treaty made between it and the new State,
formulated in and evidenced by the Resolution.
The Resolution of 1784, therefore, was, as a whole, in
accordance with the anti-Imperialist theory that all rela-
tions between States are the result of an express contract
Had it ever gone into effect, it would have constituted
a written Imperial Constitution between the American
Union, as the Imperial State, and the dependencies in
the Western region, from the moment that they assumed
even temporary Governments, and would have given
the Union the same limited powers over them as it exer-
cised over the States of the Union, which powers, how-
ever, it could have exercised without any condition
whatever as to the manner of its exercise. For the dis-
positive power, it would have substituted a power of
managing the foreign relations of the dependencies, and
an exceedingly limited power to legislate for the com-
mon interests, as soon as even temporary Governments
should be formed by these dependencies.
The Resolution of 1784 was never put in force. Pro-
viding, as it did, that the communities in the Western
region should ultimately be admitted as States of the
Confederation on equal terms with the other States, in
which respect it conformed to the resolution of October
10, 1780, and the Virginia and Massachusetts deeds of
cession, a difficulty arose from the fact that the resolution
and deeds required that each State formed in the West-
The Regulative Power, 1 783-1 787 427
ern region should be not less than one hundred nor more
than one hundred and fifty miles square.
If the Northwest Territory alone had been divided into
States one hundred and fifty miles square, eleven States
would have been formed in it; if of one hundred miles
square, twenty-five. The resolution of October lo, 1780,
however, by which these maximum and minimum di-
mensions were fixed, related to all the Western region
which should be ceded by the States to the United
States, and promised to each State formed in the re-
gion admission into the Confederation on equal terms.
In that which was actually ceded, there could have been
formed twenty States one hundred and fifty miles square,
or forty-five one hundred miles square.
As the power to admit new ** States " was based on
Article XI. of the Articles of Confederation, a new
" State " could be admitted by vote of any nine States of
the Confederation. As soon as more than three new States
were added, the original States would have been at the
mercy of any coalition between these three and a min-
ority of themselves, and as soon as more than five new
States were admitted, even nine of the old States voting
together could not have prevented the admission of as
many new States as the remainder might have seen fit.
The original States were slow to adopt a plan which
seemed certain to throw the power into the hands of the
Western States. In the Resolution as amended on re-
committal and as adopted by Congress, the difficulty was
attempted to be cured by requiring each new State on
its admission to agree that no State should be subse-
quently admitted except by a vote of two thirds of the
States then members of the Confederation ; but this was
plainly an attempt to amend Article XI. in an indirect
way, and its validity was doubtful.
It was doubtless largely owing to this difficulty that
the subject of the disposition to be made of the Western
-V
41 6 The Administration of Dependencies
of the said Six Nations and their tributaries, inhabiting
as far as the 45th degree of north latitude, as appendant
to the Government of New York." They concluded that
" by Congress accepting this cession, the jurisdiction of
the whole Western territory, belonging to the Six Na-
tions and their tributaries, will be vested in the United
States." The power of the United States over the
region inhabited by Indians under the protection of the
United States was called " jurisdiction," showing that
the committee considered the region occupied by the
Indian tribes as essentially a dependency, though under
the outward form of a protectorate.
There seems to have never been any question in Con-
gress but that the Congress was the successor of the King
of Great Britain both as respects the States of the Union,
and as respects the regions external to the Union and
subject to its control. Nor does there ever seem to have
been any question but that the power of the Congress, as
the Disposer of the affairs of the Union, extended only
to the making of rules and regulations for the common
interest and benefit of all the States of the Union. The
difficulty arose concerning the application of these prin-
ciples to the administration of the dependencies of the
Union. The party which in the years 1775 and 1776
had been^the anti-Imperialist party on account of their
devotion to the principle of States' Rights, were inclined
to the opinion that the power of the Union over 'the
dependencies extended only to the making of disposi-
tions respecting them as if they were States of the
Union, and hence extended only to the making of regu-
lations concerning the common interests of the whole
political organism consisting of the States and the de-
pendencies of the Union. If the power of the Congress
was only this, it could make no regulations even for the
purpose of granting the title to the soil in the dependen-
cies or relating to the settlement of unoccupied regions
The Dispositive Power, 1 779-1 783 4^7
belonging to the United States, since it could cer-
tainly do neither of these things in any of the States.
The provision, therefore, in the resolution of October
10, 1780, that the lands in the Western region should be
'granted or settled at such times and under such regu-
lations'* as should thereafter "be agreed on by the
United States in Congress assembled, or any nine or
more of them," was a concession forced, by the necessity
of the case, from the anti-Imperialist party, and a yielding
by them, to that extent, to the Federal-Imperialist view.
When it came to be a question of the Congress making
regulations for other purposes than these, the anti-Im-
perialists evidently blocked the way. The disposition to
be made concerning the claims of the Land Companies
to portions of the Western region was forced upon the at-
tention of Congress by petitions of these Companies, in
1779 and 1780, and the Congress, by its committee, ad-
judicated these claims in 1783, and reported in favor of
recognizing them in part, but never made any regulation
"assigning territories" to them. So in the case of Ver-
mont, the Congress in 1784, on the application of Ver-
mont, adjudicated, by a committee, the question both
of its right to a distinct existence and of its boundaries ;
but, though a decision was made that it was entitled to a
distinct existence and though the boundaries were ascer-
tained, no regulation was made in execution of the adju-
dication. So far as the Indian tribes were concerned, the
power of disposition was exercised, under the provisions
of the Articles of Confederation, not through regulations
made by Congress in the form of legislation, but by regu-
lations made in the form of treaties with the tribes.
By the resolution of October 10, 1780, therefore, the
power of the Union, as the Imperial State of the Ameri-
can Empire, over its dependencies, was declared to be the
power of disposition — the dispositive power. The anti-
Imperialist party, however, evidently fearing that such
«7
4^8 The Administration of Dependencies
power exercised by a popular representative body like the
Congress might, in practice, come to be virtually a power
of legislation with a mere pretence of previous adjudica-
tion, insisted that the power should be construed as
strictly as possible against the Congress and against the
Union, in so far as it included power to make rules and
regulations in execution of adjudications. Though, in
joining in the resolution of October lo, 1780, the anti-
Imperialists admitted that the power of disposition, from
Its very definition, implied the power to make rules and
regulations, they had at the same time succeeded in hav-
ing the power of regulation separated from the power of
disposition, so as to leave it doubtful whether the regu-
lations which were to be made in execution of the adju-
dications of Congress were to be made by the Congress
or made by the dependencies themselves. Since to allow
the dependencies to make such regulations was practically
to have no regulations made at all, the effect of the reso-
lution of October 10, 1780, was, in fact, to give the Con-
gress power over the Western region only for the purpose
of granting the primary title to the soil and for the
purpose of colonizing the region. Thenceforward, the
question was whether or not the power of Congress to
regulate the Western region was a limited one, so that,
although it was its duty to adjudicate all matters arising
between the Union and the dependencies, it had power
to make rules and regulations only in a restricted class of
cases, — in a word, it became a question of the extent of
the regulative power of the Union over its dependencies.
CHAPTER XXII
THE REGULATIVE POWER, I783-I787
THE committee of Congress appointed to consider
and report on the general policy to be pursued
toward the Western region, in their report made
October 14, 1783, proposed a resolution for the appoint-
ment of a committee to consider the expediency of
** laying out a suitable District within the said territory
and erecting it into a distinct Government," and recom-
mended that this committee be instructed, in case they
were in favor of laying out such a District,
to devise a plan for the government of the inhabitants and the
administration of justice, until their number and circumstances
shall entitle them to a place among the States of the Union^
when they shall be at liberty to form a Constitution for them-
selves, not inconsistent with the republican principles which
are the basis of the Constitutions of the respective States of
the Union.
A plan "for the government of the inhabitants and the
administration of justice " in the Western dependencies
until they were admitted to the Union would have been
a plan based on the mere will of Congress. The Union
would have "governed" these dependencies during the
whole period that they were without representation in
Congress.
Elbridge Gerry, of Massachusetts, proposed an amend-
ment to this resolution, which was adopted, and which
declared it to be the intention of Congress ** to erect a
419
434 The Administration of Dependencies
of the Northwest Territory was created into a District
or Province, under a Governor and Council appointed by
the Congress. The Governor was at the same time the
Commander-in-Chief of the militia of the region^ with
power to appoint and commission all officers below the
rank of general officers, these latter being appointed and
commissioned by Congress. He was to hold office for
three years, unless his commission was sooner revoked
by Congress.
Until the organization of the General Assembly, the
Governor had power to lay out counties and townships
and to make proper divisions of the District for the
convenient execution of civil and criminal process. He
had the entire power to appoint all ** such magistrates
and other civil officers, in each county or township, as he
shall find necessary for the preservation of peace and
good order in. the same." In the performance of all
these duties of disposition of the jurisdiction of the
region, he acted absolutely according to his own will and
pleasure, subject only to removal by Congress.
In the matter of legislation, his powers were limited,
and he had no power of adjudication between indi-
viduals, except where military law was applicable. For
purposes of legislation there were associated with him
three men who were also ** Judges." The fear of Con-
gress that even the Governor and Judges themselves
might fall in with some of the many schemes of govern-
ment which were then prevalent in the Northwest region
is shown by the very peculiar limitation which they
placed upon the legislative power to be exercised by the
Governor and the Judges. As a Legislative Assembly,
these four men were limited to simply making a choice of
** such laws of the original States, criminal and civil, as
may be necessary and best suited to the circumstances of
the District," and even these were subject to the disap-
proval of Congress.
The Regulative Power, 1 783-1 787 435
The provision for associating the Judges with the
Governor to form the Legislative Council of the District
in its first grade seems to have been inserted for the pur-
pose of evidencing the dispositive character of the Gov-
ernment of the District appointed by Congress, as a
Substituted and Trustee Government. It was the evi-
dent intention of Congress to form a body which should
legislate only after investigation and after weighing the
Constitutions and laws of the States as against the local
circumstances and conditions of the District for the pur-
pose of harmonizing the legislation of the District, so far
as practicable, with that of the States.
The Judges held office during good behavior. They
had '* a common law jurisdiction." No provision was
made for the exercise of an equitable jurisdiction, and
the necessary implication is that such jurisdiction must
have remained in Congress, since if not vested some-
where, great injustice was certain to accrue to litigants.
The District was permitted to advance from the first to
the second grade when its free male inhabitants numbered
five thousand. If they ** gave proof to the Governor"
of this fact, they were entitled to ** receive authority
with time and place, to elect Representatives from their
counties or townships, to represent them in General
Assembly." There was to be one Representative for
each five hundred of free male inhabitants until the
number should reach twenty-five, when the number and
proportion was to be regulated by the Legislature. The
right to hold the office of Representative was carefully
hedged about by restrictions, and it was distinctly as-
sumed that there was no ** citizenship of the United
States " and that the persons in the Western region were
divided into only two classes, namely, ** citizens of one
of the United States *' and ** residents of the District.'*"
This is shown by the clauses relating to eligibility to
office and to the voting franchise.
436 The Administration of Dependencies
The provision as to eligibility to the office of Represen-
tative was as follows :
Providedy That no person be eligible or qualified to act as a
Representative unless he shall be a citizen of one of the Umiei
States or have resided within the District three years^ and shall
likewise hold in his own right, in fee simple, two hundred
acres of land within the same.
The provision as to eligibility to vote for Representa-
tive was :
Provided also^ That a freehold in fifty acres of land in the
District, if a citizen of any of the United States^ and two
years residence in the District^ if a foreigner ^ in addition^ shall
be necessary to qualify a man as an elector for said Repre-
sentatives.
The provision contained in the Resolution of 1784
which permitted the Colonies in the Western region to
have a delegate in Congress with power to debate but
without the power to vote was omitted. Provision was
made for the admission of the Colonies to the Union as
States when any one of them should have a population
equal to one thirteenth of the population of the original
States.
The provision concerning the General Assembly of the
District was as follows :
The General Assembly shall consist of the Governor, a
Legislative Council, — to consist of five Members, to be ap-
pointed by the United Slates in Congress Assembled, to con-
tinue in office during pleasure, any three of whom shall be a
quorum, — and a House of Representatives, who shall have, i
legislative authority complete in all cases for the good govern-
ment of the said District."
The Congress, however, was most cautious in reserv-
The Regulative Power, 1 783-1 787 437
ing to itself complete control of the whole Colonial Gov-
ernment. In the first place, it was provided that the
Governor, Judges, Legislative Council, Secretary, and all
other officers except the Representatives in the Lower
House of the Legislature should be appointed by Con-
gress and should take "an oath or affirmation of fidelity;
the Governor before the President of Congress, and all
other officers before the Governor.** All legislation en-
acted by the Governor and Judges was to be transmitted
to Congress and was to be subject to its disapproval. The
Governor was given an absolute power of veto over all
laws passed by the Legislature, by the provision according
to which ** no Bill or Legislative Act whatever shall be
valid or of any force without his consent," and also a
power "to convene, prorogue and dissolve the General
Assembly, when in his opinion it shall be expedient."
As the Governor had thus full power to prevent or nullify
all objectionable Colonial legislation, and as Congress
had full power over the Governor by virtue of its ability
to revoke his commission at any time, the ultimate con-
trol was kept in the hands of Congress.
In addition to these reservations of power. Congress
had the power of modifying or rescinding the whole
Ordinance by amendment or repeal. It did not purport
to be a "Charter of Compact," in whole or in part. It
was merely an "Ordinance." The action of Congress in
1784 had been by a "Resolution " which, when accepted
by the District, was to become a "Charter " — that is, the
evidence — of a "Compact." The Ordinance of 1787, as
originally contemplated by Congress, was to be an act
emanating exclusively from Congress and subject to
modification or rescission without consulting the District.
According to the Ordinance as reported, therefore. Con-
gress reserved to itself the right, even after the District
had formed its own partly elective Government, to de-
stroy the elective part of the Government and place the
438 The Administration of Dependencies
District under the charge of a Government wholly ap-
pointed by Congress. The theory of the Ordinance as
reported was, therefore, that the Congress, as the repre-
sentative of the Confederation, had power to make all
rules and regulations for the District that it might think
proper.
On July 9, the Committee was again reconstituted,
Carrington of Virginia being made the chairman, and
the other members being Dane, Richard Henry Lee,
Kean, and Smith. The Committee immediately set to
work in hot haste to amend the Ordinance, and in two
days had brought it into substantially the form in which
it was finally adopted. The action of Congress upon the
report of this Committee was as prompt as the action of
the latter had been. On the second day after the Com-
mittee reported (July 13), the Ordinance was adopted.
Carrington's Committee ameliorated, in some small de-
tails, the general regime according to which the Northwest
Territory was to be administered until the Districts were
admitted into the Union. The Governor and other
officers and the Representatives and their electors were
required to be residents of the District, and the House of
Representatives was allowed to nominate persons to Con-
gress from whom the members of the Legislative Council
were to be selected. The District was allowed to have
a delegate in Congress, with power to debate but not to
vote. Still, the Government provided for in the Ordi-
nance was unmistakably **a Colonial Government similar
to that which existed in these States previous to the
Revolution." The great change in the Ordinance made
by this Committee consisted in adding to it six sections
which were declared to be** Articles of Compact between
the original States and the people and States in the said
territory," which were to ** forever remain unalterable,
unless by common consent."
It had evidently been objected to the Ordinance as re-
The Regulative Power, 1 783-1 787 439
ported that it did not sufficiently qualify and limit the
power of the Confederation over the dependencies, so as
to make it clear that the relationship between them was
founded on compact and not on the mere will of the
Confederation, and was hence a power of disposition;
and that it did not make it sufficiently clear on what
principles Congress intended to act in negativing the
action of the General Assembly of the District.
The first of the objections was met by inserting pro-
visions in the Articles of Compact, by which certain of
the implied terms and conditions of the compact growing
out of the relationship were reduced to writing and
agreed to be permanent unless changed by mutual con-
sent. The relationship was thus recognized as founded
on contract between States and hence as a federal and
constitutional relationship.
The second objection was met by making the Articles
of Compact the basis upon which the power of the Con-
federation to negative Colonial legislation should proceed.
The position of the American Colonies on the subject
of the right of the Imperial State, through its Sovereign,
to negative colonial legislation was perfectly clear. In
the Declaration and Resolves of the Continental Con-
gress of October 14, 1774, it had been declared:
[The Colonies] are entitled to a free and exclusive power
of legislation, in their Provincial Legislatures, ... in all
cases of taxation and internal polity, subject only to the nega-
tive of their Sovereign, in such manner as has been heretofore
used and accustomed.
As the Congress, acting for the Confederation, was rec-
ognized as the Sovereign of the Northwest Territory, it
followed that it might rightfully exercise the power to neg-
ative Colonial legislation, consistently with the principles
for which the American Colonies stood in the Revolution.
440 The Administration of Dependencies
It was important, in the interests of harmony, how-
ever, to arrange that all action of the Confederation, by
its Congress or by its officials, having the effect to nega-
tive Colonial legislation, should occur under such con-
ditions as to make acquiescence in it by the Colonies as
likely as possible. This was accomplished by inserting
such of the conditions of the relationship as the Con-
federation was willing to recognize as permanent in the
Articles of Compact, and by making the validity of all
legislation of the Colonial Assembly conditional upon its
not being "repugnant to* the principles and articles in
this Ordinance established and declared." The Con-
gress did not in any way commit itself to the proposition
that the conditions of the relationship contained in the
Articles of Compact were the only conditions on which it
would insist, or the only conditions on which the District
might properly insist. It was provided simply that
"The following Articles shall be considered as Articles
of Compact," etc.
The first two Articles were a declaration that indi-
viduals within the District should have the natural rights
of life, liberty, and property. The third provided for
the encouragement of education and forbade mistreat-
ment by the District of the Indians. A violation, by a
legislative act, in a dependency, of any of these principles
would justify an Imperial State, in the exercise of its
power of disposition, in negativing such act even though
there were no Articles of Compact between it and the
dependency giving it this power, but, as it was possible
to cover this ground by an express contract, this was
done.
The fourth Article provided that the Northwest Terri-
tory should "forever remain a part of this Confederacy
of the United States of America, subject to the Articles
of Confederation and to such alterations therein as shall
be constitutionally made, and to all the Acts and Ordi-
The Regulative Power, 1 783-1 787 441
nances of the United States conformable thereto." To
** forever remain a part of this Confederacy " meant that
they were to be either **parcel of the Realm in tenure"
or "parcel of the body of the Realm,** to use the old dis-
tinction used in Calvin* s Case, to which reference is evi-
dently made — that is, that they were forever to remain
either in the position of dependencies of the Union or of
States admitted into the Union by representation in its
Central Government, and were not to have the right of
secession either from the Federal Empire or from the
Federal State. This was unnecessary, since the power of
the Confederation was recognized as being a power of
disposition. Still it was an important matter and proper
to be made the subject of an express contract.
The fourth Article also provided that the District
should be subject to pay its proportional part of the
federal debts and of the current expenses of the whole
Government. An Imperial State exercising the power
of disposition might properly have imposed this obliga-
tion upon a dependency situated as was the District, but
it was a matter about which disputes might arise and hence
properly settled by express contract. The same may be
said of the provisions of the fourth Article according to
which the proprietary title of the Confederation to the
soil of the unappropriated parts of the District was to be
recognized by the District, by which this land was to
be free from taxes, by which non-residents were not to be
taxed higher than residents, and by which the navigable
rivers in the District were declared to be free and com-
mon highways. These were questions about which a
difference of opinion was possible and hence properly the
subject of an express contract.
The .fifth Article recognized the obligation of the
United States under the resolution of October 10, 1780,
to lay out the Western region into distinct republican
States and to admit them into the Union on equal
442 The Administration of Dependencies
terms. Such contractual obligations -would of course
be recognized by any State or tribunal exercising dis-
positive power, but it was advisable to formally recognize
a direct obligation existing between the Confederation
and the District by means of a document evidencing
the contract.
Incidentally it may be noticed that this Article finally
solved the problem raised by the provision of the resolu-
tion of October lo, 1780, which required that the new
States in the Western region should be not less than one
hundred nor more than one hundred and fifty miles
square. It provided that not less than three nor more
than five States should be laid out in the reg^ion, but
made this provision conditional on the consent of Vir-
ginia, which had made its cession conditional on the ful-
filment by the Union of the resolution of October 10,
1 780; and Virginia subsequently consented to this change.
The sixth Article forbade slavery in the District. An
Imperial State exercising a power of disposition would not
have been likely to permit slavery in a region situated as
was the Northwest Territory. Still, considering the vio-
lence of the dispute on the subject, it was eminently
proper to take advantage of the power of the Confedera-
tion to enter into express contracts with its dependencies
and thus settle the question.
The Ordinance was thus a compromise between the
Resolution of 1784 and the Ordinance as reported in 1786
and again on April 26, 1787. The former had pushed
the principle that the relationship between the Confedera-
tion and its dependencies was a relationship founded on
compact to an absurdity, by assuming that the relation-
ship could not exist except as the result of an express
contract. The Ordinance as reported in 1786 and on
April 26, 1787, had left it doubtful whether the relation-
ship was founded on compact at all. The Ordinance as
finally adopted proceeded on the theory that the rela-
The Regulative Power, 1 783-1 787 443
tionship was wholly founded on an implied contract, but
that the Imperial State and any dependency might, by
an express contract, reduce the conditions, in any respects
they saw fit, to writing and agree that in these respects
no change should be made except by mutual consent, —
the dispositive power of the Imperial State remaining
unchanged as respects matters not reduced to the form
of express contract.
It has been shown that the Ordinance as adopted
recognized, first, that the power of the Confederation was
a power of disposition, whether its action was constructive
and positive or destructive and negative, and, secondly,
that the power of disposition implied the power to con-
tract with a dependency. The Ordinance had, however,
another very important effect, — it recognized that the
power of the Confederation over the dependencies was
plenary — that it was a power to dispose of them **in all
cases whatsoever,*' and to regulate them accordingly.
None of the provisions relating to the form of govern-
ment of the dependencies in the Western region, or to
the powers to be exercised by the Union over these de-
pendencies until their admission into the Union as States
on equal terms were incorporated in the Articles of Com-
pact. They were all in the part of the Ordinance which
was a regulation made under the power of disposition.
These provisions were, of course, subject to modification
or rescission by Congress at any time. Congress, by thus
carefully leaving these provisions out of the Articles of
Compact, in effect declared that the powers of the Con-
federation over the dependencies, being powers of dispo-
sition based on an implied contract, were in the nature
of things limited only by the necessity of each case, and
that the Confederation had the right to finally determine
what the necessity in each case demanded, subject to any
express contract of the Union relating to the manner of
disposition. Where the Union, by express contract, had
444 The Administration of Dependencies
obligated itself to exercise its powers of disposition in a
certain manner, necessity of course demanded that in its
regulations it should act in this manner. The plenary
nature of the regulative power which was implied in the
dispositive power was thus declared. The Union was
declared to have power to make necessary or needful
rules and regulations in all cases whatsoever.
The Ordinance, therefore, settled the question con-
cerning the character and extent of the regulative power
of the Union over its dependencies. It recognized the
Union as having power to make rules and regulations in
execution of and necessarily incidental to its power of
disposition in all cases whatsoever, subject to all express
contracts of the Union with foreign States, with the
States of the Union, or with the dependencies of the
Union — that is, as a power to make all needful rules and
regulations respecting the dependencies.
CHAPTER XXIII
THE IMPERIAL POWER, 1787
THE first resolution adopted by the Convention for
framing the Constitution of the United States,
which was the basis of all its subsequent action,
read, according to the report of Madison, in his Journal
of the Federal Convention^ as follows :
Resolved : That a National Government ought to be estab-
lished, consisting of a Supreme Legislative, Executive, and
Judiciary.
If the American Confederation was to be reorganized so
as to be a true "Nation " — that is, a State — with a Chief
Executive, it was plainly necessary, if traditions were to
be observed, that the Executive should administer the
dependencies of the State under the superintendence of
the Legislature. The power of disposition was a power
neither strictly executive nor legislative, but which more
closely resembled the executive than the legislative
power, since it was essentially judicative in its character.
Still, though the American Colonies, during their contest
with Great Britain, had uniformly insisted that the po-
litical connection between them and the State of Great
Britain was through the Executive of Great Britain,
who was ex officio the Disposer of the Empire, the anti-
Imperialists had never succeeded in committing the
Colonies to the proposition that the Legislature of Great
Britain had no power in the Empire. Dickinson had
prevented the adoption of the statement to this effect in
445
446 The Administration of Dependencies
Jefferson's draft of the Declaration on Taking up Arms,
and the Federal-Imperialists had prevented the adoption
of a similar statement in his draft of the Declaration of
Independence. The American Union was, therefore, in
a position, thanks to the Federal-Imperialists, where
it could place the responsibility for the habitual per-
formance of its Imperial obligations either on the Execu-
tive, as the expert branch of the Government, subject to
the superintendence of the Legislature, or on the Legis-
lature, as the popular branch of the Government, subject
to the superintendence of the Executive. It could not,
however, without national self-stultification, after having
insisted that the Chief Executive of the State of Great
Britain had power to nullify Acts of Parliament relating
to the American Colonies as "pretended " and ** unwar-
rantable " legislation, confer upon its own Legislature
the exclusive power to administer the dependencies
of the Union, or even require the Chief Executive to ex-
ecute the will of the Legislature relating to the depend-
encies in all cases.
In examining the proceedings of the Convention,
relating to administration of the dependencies, therefore,
the prime interest naturally attaches to its action con-
cerning the powers of the Chief Executive of the Union.
Randolph's resolutions, which were taken as the basis
of the action of the Convention, contained the following
three provisions bearing on the subject of the adminis-
tration of the dependences :
6. That the National Legislature ought to be empowered
to enjoy the legislative rights vested in Congress by the Con-
federation ; and moreover to legislate in all cases to which the
separate States are incompetent, or in which the harmony of
the United States may be interrupted by the exercise of in-
dividual legislation.
7. That a National Executive be instituted; . . • and
-It.
The Imperial Power, 1787 447
that besides a general authority to execute the National laws,
it ought to enjoy the executive rights vested in Congress by
the Confederation.
10. That provision ought to be made for the admission of
States lawfully arising within the limits of the United States,
whether from a voluntary junction of government and ter-
ritory, or otherwise, with the consent of a number of voices in
the National Legislature less than the whole.
The expression "rights vested in the Confederation "
was wide enough to include both those vested in Con-
gress by the Articles of Confederation and those vested
in it by the resolution of October 10, 1780 and the ces-
sions of the States made in pursuance of that resolution.
Considering the character of the power exercised by
the Confederation in administering its dependencies,
it was doubtful whether this power was intended to have
been granted to the National Legislature by the sixth
resolution as a ** legislative right," or to the National
Executive, under the seventh resolution, as an "execu-
tive right." As all the rights exercised by the Congress
of the Confederation had been recognized as being essen-
tially executive rights, and as it had claimed that it was
the successor of the King of Great Britain for the purpose
of administering the Western region, the natural infer-
ence would seem to be that it was intended to make the
Chief Executive the acting representative of the Union
in the administration of the dependencies, subject to the
superintendence of the Legislature.
The word "arising** in the tenth resolution was a word
of sufficiently broad meaning to cover the case of the
creation of a State by the action of the squatters or
settlers on the public lands in joining themselves, their
families, their possessions and lands, and uniting under a
common authority (which was the case of the State of
Franklin and the State of Vermont), or of the creation
446 The Administration of Dependencies
Jefferson's draft of the Declaration on Taking up Arms,
and the Federal- Imperialists had prevented the adoption
of a similar statement in his draft of the Declaration of
Independence. The American Union was, therefore, in
a position, thanks to the Federal-Imperialists, where
it could place the responsibility for the habitual per-
formance of its Imperial obligations either on the Execu-
tive, as the expert branch of the Government, subject to
the superintendence of the Legislature, or on the legis-
lature, as the popular branch of the Government, subject
to the superintendence of the Executive. It could not,
however, without national self-stultification, after having
insisted that the Chief Executive of the State of Great
Britain had power to nullify Acts of Parliament relating
to the American Colonies as "pretended " and "unwar-
rantable " legislation, confer upon its own Legislature
the exclusive power to administer the dependencies
of the Union, or even require the Chief Executive to ex-
ecute the will of the Legislature relating to the depend-
encies in all cases.
In examining the proceedings of the Convention,
relating to administration of the dependencies, therefore,
the prime interest naturally attaches to its action con-
cerning the powers of the Chief Executive of the Union.
Randolph's resolutions, which were taken as the basis
of the action of the Convention,
contait
led the foUiywing
three provisions bearing on the
tration of the dependences;
M.LJCCI
: of Uk>- - S-
\
6. That the National
Legislate
rights ve^^
■T to led£;
J, '
to enjoy the legislative :
federation; and morcovt
1
¥ ^
separate States af^^o
the United Slat; \
:;-:■ - 1
f m
dividual legisl:^ A
7. That a B^ ■
■I
A
I
^^M
The Imperial Power, 1787 447
that besides a general authority to execute the National laws,
it ought to enjoy the executive rights vested in Congress by
the Confederation.
10. That provision ought to be made for the admission of
States lawfully arising within the limits of the United States,
whether from a voluntary junction of government and ter-
ritory, or otherwise, with the consent of a number of voices in
the National Legislature less than the whole.
The expression "rights vested in the Confederation "
was wide enough to include both those vested in Con-
gress by the Articles of Confederation and those vested
in it by the resolution of October 10, 1780 and the ces-
sions of the States made in pursuance of that resolution.
Considering the character of the power exercised by
the Confederation in administering its dependencies,
it was doubtful whether this power was intended to have
been granted to the National Legislature by the sixth
resolution as a ** legislative right," or to the National
Executive, under the seventh resolution, as an ** execu-
tive right." As all the rights exercised by the Congress
of the Confederation had been recognized as being essen-
tially executive rights, and as it had claimed that it was
the successor of the King of Great Britain for the purpose
of administering the Western region, the natural infer-
ence would seem to be that it was intended to make the
Chief Executive the acting representative of the Union
in the administration of the dependencies, subject to the
superintendence of the Legislature.
The word "arising" in the tenth resolution was a word
of sufficiently broad meaning to cover the case of the
creation of a State by the action of the squatters or
Jttlers on the public lands in joining themselves, their
lilies, their possessions and lands, and uniting under a
^mmon authority (which was the case of the State of
iklin and the State of Vermont), or of the creation
448 The Administration of Dependencies
of a State by the authority and direction of a State
(which was the case of the District of Kentucky; ; yet it
rather implied that such communities were essentially
distinct personalities, growing like individuals by their
own exertions, and not things moulded into shape by a
force from without.
These words ** lawfully arising," in connection with
the general powers of legislation given to Congress, were,
it seems, considered sufficient for a considerable time to
designate the theory of the administration of dependen-
cies. The word "arising " was doubtless used to satisfy
the anti-Imperialist faction in the Convention, and the
word *' lawfully " to satisfy the Federal-Imperialist
faction.
The Congress, in Committee of the Whole, unanimously
agreed that all the legislative powers of the existing
Congress ought to be transferred to the National Legis-
lature, and the Committee of the Whole reported Ran-
dolph's sixth resolution with the single change of the
word ** possess *' for the expression "empowered to en-
joy." The provision with regard to the National Execu-
tive was, however, changed so as to read as follows :
Resolved : That a National Executive be instituted, to con-
sist of a single person; to be chosen by the National Legisla-
ture, for the term of seven years; with power to carry into
execution the National laws; to appoint to offices in cases not
otherwise provided for; to be ineligible a second time; and to
be removable on impeachment and conviction of malpractices
or neglect of duty ; to receive a fixed stipend by which he may
be compensated for the devotion of his time to the public
service, to be paid out of the National Treasury.
Madison, on June i, attempted to have a clause added
which should provide that the Executive should be
empowered **to execute such other powers not legisla-
The Imperial Power, 1787 449
tive or judiciary in their nature, as may from time to
time be delegated by the National Legislature,'* but the
clause was stricken out on Pinckney's objection that
this power was included in the power to carry into effect
the National laws; Massachusetts, Virginia, and South
Carolina voting in favor of the retention of the clause.
In the Committee of the Whole, the tenth resolution
relating to "new States lawfully arising " was left un-
changed.
The Committee of the Whole reported on June 13.
The debate on this report continued until July 26,
when the resolutions of the Committee of the Whole, as
amended, were referred to a Committee on Detail, com-
posed of Rutledge, Randolph, Gorham, Ellsworth, and
Wilson. During this debate, on July 17, the provision
relating to the National Legislature was amended so as
to read :
That the National Legislature ought to possess the legis-
lative rights vested in Congress by the Confederation; and,
moreover, to legislate in all cases for the general interests of
the Union, and also in those to which the States are separately
incompetent, or in which the harmony of the United States
may be interrupted by the exercise of individual legislation.
The provision relating to the Executive was amended
by striking out the clause making him ineligible for
re-election. That relating to the admission of new States
into the Union was not changed at all.
As the resolutions went to the Committee on Detail,
therefore, they either gave the Congress the exclusive
power of legislating for the dependencies, as a part of
"the general interests of the Union," or they left the
whole subject of the respective powers of the Legislature
and the Executive in the administration of the depend-
encies to be implied from the words "lawfully arising."
444 The Administration of Dependencies
obligated itself to exercise its powers of disposition in a
certain manner, necessity of course demanded that in its
regulations it should act in this manner. The plenary
nature of the regulative power which was implied in the
dispositive power was thus declared. The Union was
declared to have power to make necessary or needful
rules and regulations in all cases whatsoever.
The Ordinance, therefore, settled the question con-
cerning the character and extent of the regulative power
of the Union over its dependencies. It recogpiized the
Union as having power to make rules and regulations in
execution of and necessarily incidental to its power of
disposition in all cases whatsoever, subject to all express
contracts of the Union with foreign States, with the
States of the Union, or with the dependencies of the
Union — that is, as a power to make all needful rules and
regulations respecting the dependencies.
CHAPTER XXIII
THE IMPERIAL POWER, 1787
THE first resolution adopted by the Convention for
framing the Constitution of the United States,
which was the basis of all its subsequent action,
read, according to the report of Madison, in his Journal
of the Federal Convention^ as follows :
Resolved : That a National Government ought to be estab-
lished, consisting of a Supreme Legislative, Executive, and
Judiciary.
If the American Confederation was to be reorganized so
as to be a true "Nation " — that is, a State — with a Chief
Executive, it was plainly necessary, if traditions were to
be observed, that the Executive should administer the
dependencies of the State under the superintendence of
the Legislature. The power of disposition was a power
neither strictly executive nor legislative, but which more
closely resembled the executive than the legislative
power, since it was essentially judicative in its character.
Still, though the American Colonies, during their contest
with Great Britain, had uniformly insisted that the po-
litical connection between them and the State of Great
Britain was through the Executive of Great Britain,
who was ex officio the Disposer of the Empire, the anti-
Imperialists had never succeeded in committing the
Colonies to the proposition that the Legislature of Great
Britain had no power in the Empire. Dickinson had
prevented the adoption of the statement to this effect in
445
446 The Administration of Dependencies
Jeflferson's draft of the Declaration on Taking up Arms,
and the Federal-Imperialists had prevented the adoption
of a similar statement in his draft of the Declaration of
Independence. The American Union was, therefore, in
a position, thanks to the Federal-Imperialists, where
it could place the responsibility for the habitual per-
formance of its Imperial obligations either on the Execu-
tive, as the expert branch of the Government, subject to
the superintendence of the Legislature, or on the Legis-
lature, as the popular branch of the Government, subject
to the superintendence of the Executive. It could not,
however, without national self-stultification, after having
insisted that the Chief Executive of the State of Great
Britain had power to nullify Acts of Parliament relating
to the American Colonies as "pretended " and '* unwar-
rantable" legislation, confer upon its own Legislature
the exclusive power to administer the dependencies
of the Union, or even require the Chief Executive to ex-
ecute the will of the Legislature relating to the depend-
encies in all cases.
In examining the proceedings of the Convention,
relating to administration of the dependencies, therefore,
the prime interest naturally attaches to its action con-
cerning the powers of the Chief Executive of the Union.
Randolph's resolutions, which were taken as the basis
of the action of the Convention, contained the following
three provisions bearing on the subject of the adminis-
tration of the dependences :
*
6. That the National Legislature ought to be empowered
to enjoy the legislative rights vested in Congress by the Con-
federation ; and moreover to legislate in all cases to which the
separate States are incompetent, or in which the harmony of
the United States may be interrupted by the exercise of in-
dividual legislation.
7. That a National Executive be instituted; . . . and
'Ik
h
The Imperial Power, 1787 447
that besides a general authority to execute the National laws,
it ought to enjoy the executive rights vested in Congress by
the Confederation.
10. That provision ought to be made for the admission of
States lawfully arising within the limits of the United States,
whether from a voluntary junction of government and ter-
ritory, or otherwise, with the consent of a number of voices in
the National Legislature less than the whole.
The expression "rights vested in the Confederation "
was wide enough to include both those vested in Con-
gress by the Articles of Confederation and those vested
in it by the resolution of October 10, 1780 and the ces-
sions of the States made in pursuance of that resolution.
Considering the character of the power exercised by
the Confederation in administering its dependencies,
it was doubtful whether this power was intended to have
been granted to the National Legislature by the sixth
resolution as a ** legislative right," or to the National
Executive, under the seventh resolution, as an ** execu-
tive right." As all the rights exercised by the Congress
of the Confederation had been recognized as being essen-
tially executive rights, and as it had claimed that it was
the successor of the King of Great Britain for the purpose
of administering the Western region, the natural infer-
ence would seem to be that it was intended to make the
Chief Executive the acting representative of the Union
in the administration of the dependencies, subject to the
superintendence of the Legislature.
The word "arising" in the tenth resolution was a word
of sufficiently broad meaning to cover the case of the
creation of a State by the action of the squatters or
settlers on the public lands in joining themselves, their
families, their possessions and lands, and uniting under a
common authority (which was the case of the State of
Franklin and the State of Vermont), or of the creation
448 The Administration of Dependencies
of a State by the authority and direction of a State
(which was the case of the District of Kentucky^ ; yet it
rather implied that such communities were essentially
distinct personalities, growing like individuals by their
own exertions, and not things moulded into shape by a
force from without.
These words ** lawfully arising," in connection with
the general powers of legislation given to Congress, were,
it seems, considered sufficient for a considerable time to
designate the theory of the administration of dependen-
cies. The word "arising" was doubtless used to satisfy
the anti-Imperialist faction in the Convention, and the
word ** lawfully " to satisfy the Federal- Imperialist
faction.
The Congress, in Committee of the Whole, unanimously
agreed that all the legislative powers of the existing
Congress ought to be transferred to the Natic^al Legis-
lature, and the Committee of the Whole reported Ran-
dolph's sixth resolution with the single change of the
word "possess " for the expression "empowered to en-
joy." The provision with regard to the National Execu-
tive was, however, changed so as to read as follows :
Resolved : That a National Executive be instituted, to con-
sist of a single person; to be chosen by the National Legisla-
ture, for the term of seven years; with power to carry into
execution the National laws; to appoint to offices in cases not
otherwise provided for; to be ineligible a second time; and to
be removable on impeachment and conviction of malpractices
or neglect of duty ; to receive a fixed stipend by which he may
be compensated for the devotion of his time to the public
service, to be paid out of the National Treasury.
Madison, on June i, attempted to have a clause added
which should provide that the Executive should be
empowered **to execute such other powers not legisla-
The Imperial Power, 1787 449
tive or judiciary in their nature, as may from time to
time be delegated by the National Legislature," but the
clause was stricken out on Pinckney's objection that
this power was included in the power to carry into effect
the National laws; Massachusetts, Virginia, and South
Carolina voting in favor of the retention of the clause.
In the Committee of the Whole, the tenth resolution
relating to **new States lawfully arising " was left un-
changed.
The Committee of the Whole reported on June 13.
The debate on this report continued until July 26,
when the resolutions of the Committee of the Whole, as
amended, were referred to a Committee on Detail, com-
posed of Rutledge, Randolph, Gorham, Ellsworth, and
Wilson. During this debate, on July 17, the provision
relating to the National Legislature was amended so as
to read :
That the National Legislature ought to possess the legis-
lative rights vested in Congress by the Confederation; and,
moreover, to legislate in all cases for the general interests of
the Union, and also in those to which the States are separately
incompetent, or in which the harmony of the United States
may be interrupted by the exercise of individual legislation.
The provision relating to the Executive was amended
by striking out the clause making him ineligible for
re-election. That relating to the admission of new States
into the Union was not changed at all.
As the resolutions went to the Committee on Detail,
therefore, they either gave the Congress the exclusive
power of legislating for the dependencies, as a part of
"the general interests of the Union," or they left the
whole subject of the respective powers of the Legislature
and the Executive in the administration of the depend-
encies to be implied from the words "lawfully arising."
450 The Administration of Dependencies
The Committee on Detail seem to have taken the latter
view, for they reported a draft of Constitution in whidi
was substituted, instead of the general g^ant of powers
to the Legislature contained in the resolution, a specifi-
cation of its powers substantially like that contained in
Article I., Section 8, of the Constitution as adopted, in
which specification no power was given to the Legisla-
ture respecting the dependencies.
In the draft, the Committee on Detail inserted a clause
evidently intended to dignify the office of Executive
and to render it independent of the Legislature to a
proper extent. During the debates on the resolutions re-
ported by the Committee of the Whole, it had been recog-
nized that it would not do to subordinate the executive
wholly to the legislative part of the Government — that
the real question was how to balance the Executive, as the
expert part of the Government, as against the Legisla-
ture, the popular part. The question of the character
of the Executive was one of the last questions dis-
cussed before the reference to the Committee on Detail,
and during this debate the tendency of the Convention
towards making the Executive responsible to the people,
rather than to the Legislature, was clearly evident. The
proposition that the Executive should be chosen by the
Legislature was warmly debated, and passed by a vote of
six States to three, Pennsylvania, Delaware, and Mary-
land voting against it, Massachusetts, New York, and
Rhode Island not voting, and Virginia being divided —
Washington and Madison voting against it.
The Committee on Detail reported a clause relating to
the executive power which read, in part, as follows :
The executive power of the United States shall be vested
in a single person. His style shall be ** The President of the
United States of America," and his title shall be ** His Excel-
lency.**
The Imperial Power, 1787 451
As the draft made by the Committee on Detail stood,
the President was given the exclusive power of disposition
of the dependencies. The powers of Congress were
distinctly specified in that draft, and no power whatever
was given to it over the dependencies. The only two
references in that draft to the administration of depen-
dencies were contained in the two following paragraphs :
As the proportions of numbers in different States will alter
from time to time; as some of the States may hereafter be
divided; as others may be enlarged by addition of territory;
as two or more States may be united ; as new States will be
erected within the limits of the United States, — the Legislature
shall, in each of these cases, regulate the number of represen-
tatives by the number of inhabitants, according to the pro-
visions hereinafter made, at the rate of one for every forty
thousand.
New States lawfully constituted or established within the limits
of the United States may be admitted by the Legislature into
this Government. ... If a new State shall arise within
the limits of any of the present States, the consent of the Legis-
lature of such States shall be also necessary to its admission.
The power of the American Union over its dependen-
cies was thus declared, in this draft, a power *' to erect
new States" and "to constitute or establish new States."
The constitution and establishment of new States was
recognized as an act to be done under the Constitution,
not only by the meaning of the words "erected," "con-
stituted," and "established," but also by the coupling of
the word "lawfully" with the words "constituted and
established."
That the Executive was to have powers which the
Congress itself was to execute by its legislation was
shown by the clause in this draft, after the general speci-
fication of the powers of Congress, which provided that
the Congress should have power :
452 The Administration of Dependencies
To make all laws which shall be necessary and proper for
carrying into execution the foregoing powers, and all other
powers vested by this Constitution in the Government of the
United States^ or in any Department or Office thereof.
It may be noticed, in passing, that this provision was
incorporated in the Constitution as adopted, with the
single change of the word "office " to "officer."
In the draft of August 6, reported by the Committee
on Detail, the general provisions as to the legislative, ex-
ecutive, and judicial powers were as follows :
The legislative power shall be vested in a Congress, to con-
sist of two separate and distinct bodies of men, a House of
Representatives and a Senate.
The executive power of the United States shall be vested in
a single person. His style shall be ** The President of the
United States of America,'* and his title shall be *' His Excel-
lency."
The judicial power of the United States shall be vested in
one Supreme Court, and in such inferior courts, as shall, when
necessary, from time to time, be constituted by the Legislature
of the United States.
In the Constitution, as adopted, these general powers
are granted in the following words :
All legislative powers herein granted shall be vested in a
Congress of the United States, which shall consist of a Senate
and a House of Representatives.
The executive power shall be vested in a President of the
United States of America.
The judicial power of the United States shall be vested in
one Supreme Court and such inferior courts as the Congress
may from time to time ordain and establish.
Between the time of the report of the Committee on
Detail, therefore, and the close of the Convention, the
The Imperial Power, 1787 453
general words relating to the powers of the National
Legislature were restricted, while those relating to the
National Executive were enlarged. The general words
relating to the powers of the National Judiciary were
not changed.
These changes were made by the Committee on Style
and Arrangement, appointed September 10, which con-
sisted of Johnson, Hamilton, Gouverneur Morris, Madi-
son, and King.
The President, therefore, is authorized to exercise
"the executive power," while the Congress is authorized
to exercise only "all legislative powers herein granted,"
— the word "herein " apparently referring to Article I.
of the Constitution, in which occurs the specification of
the "legislative powers" of Congress. The character
and extent of the executive power, therefore, is to be
determined according to the principles of the general
public law, and by the fundamental principles and tra-
ditions of the American Union ; while the character and
extent of the legislative power is to be determined by the
express words of specification in the grant. All powers
which are strictly " legislative " in their nature granted
by the Constitution to Congress are undoubtedly vested
in Congress to the exclusion of the President, but powers
not legislative are not vested in it exclusively. The
power of the American Union over its dependencies, not
being legislative in its nature, may therefore, it would
seem, be exercised by the President, as a part of "the
executive power. ' '
After the draft of August 6 was reported by the
Committee on Detail, the question plainly was whether
or not the Congress should have any power whatever in
the administration of the dependencies. There were
several reasons which doubtless operated to induce the
Convention to give it power in this respect.
The first was that it was realized that since the power
454 The Administration of Dependencies
of the American Union over its dependencies was the
power of a State over other States, and essentially neither
legislative, executive, nor judicial in its character, it was
immaterial by what instrumentality the Imperial State
exercised its powers, provided it exercised them justly
and expertly. It might therefore exercise them through
its Legislature — the popular branch of its Government—
or its Executive — the expert branch— or by both, accord-
ing as experience should show that one method of action
or the other produced the best results in the particular
case.
The second was that the Western region had been
ceded to "the United States in Congress assembled,"
and the Congress of the Confederation had already made
a disposition of the region. To have provided that the
power over the Western region should be exercised by
the President would have been a reversal of policy which
would have been likely to weaken the authority of the
Union.
Another reason was that it was perceived that a region
situated with relation to a State as was the Northwest
Territory to the American Union might properly be
subjected to the will of the popular branch of the
Government. Such a region must first of all be held
strongly to the State. If not, it is likely to be a base
of operations against the State. As it is ultimately
to form a part of the body and personality of the
State, its institutions must be assimilated to those of
the State. If not, it is likely to cause trouble when ad-
mitted into the body and personality of the State. For
these purposes, the control of the Congress over the
Northwest Territory was to be preferred to that of the
President. Though quite contrary to the principles on
which the American Colonies had acted in the Revolu-
tion, such a course of action was evidently regarded as
justified by the circumstances, which were entirely dif-
The Imperial Power, 1787 455
ferent from those which existed between the American
Colonies and Great Britain.
The resolution giving Congress power in the admin-
istration of the dependencies was introduced by Madi-
son. It will be remembered that he had just come
from Congress, where, as member of the Committee
on Foreign Relations, he had had many interviews
with the Spanish Minister, Guardoqui, which had shown
him the disaffection of the Western region and the
danger of its loss by the combined action of Great Brit-
ain and Spain. He doubtless realized the hostility of
the Western region provoked by the action of the dele-
gates of seven States in authorizing a treaty with Spain
allowing that nation to control the navigation of the
Mississippi for twenty-five years, and felt that unless
the Congress under the Constitution were to be given
power over the Western region, the American Union
could not fulfil the trust which it had assumed by its
declaration of trust of October lo, 1780, and that the
Western region was lost to the United States. He knew,
too, that while he was in Congress it had been thought
necessary to convert the whole Western region into a
Province of the United States under a Governor and
other officers appointed by Congress, and that since he
had left Congress this plan had been carried out by the
enactment of an Ordinance for this purpose.
On August 18, while the Article of the draft contain-
ing the specifications of the legislative powers of Con-
gress was under discussion, Madison ''submitted, in
order to be referred to the Committee on Detail, the
following powers, as proper to be added to those of the
General Legislature " :
To dispose of the unappropriated lands of the United States;
To institute temporary Governments for new States arising
therein.
\
45^ The Administration of Dependencies
These specifications of powers were a part of a list of
powers contained in the resolution "as proper to be
added to those of the General Legislature," in which Ust
were included the power to regulate Indian affairs, to
legislate for the Federal District, to grant charters of in-
corporation, to grant copyrights and patents, to establish
a university and to acquire and maintain forts and public
buildings. It was evidently his intention that the powers
over the dependencies should be put on exactly a par
with the other powers of Congress.
On August 22, the Committee on Detail reported a
clause covering the ground of Madison's propositions,
to be inserted in the specifications of the powers of the
Legislature just before the clause giving the Legislature
power " to make all laws which shall be necessary and
proper for carrying into execution the foregoing powers,"
which read :
The Legislature of the United States shall have power to
provide, as may become necessary, from time to time, for the
well-managing and securing the common property and general
interests and welfare of the United States in such manner as
shall not interfere with the government of individual States,
in matters which respect only their internal police or for which
their individual authority may be competent.
The words ** to provide, as may become necessary from
time to time, for the well-managing and securing the
common property and general interests " were plainly a
mere paraphrase of the expression ** to dispose of the
common property and general interests." They imposed
a condition and trust upon the power of Congress, re-
quiring Congress to ** provide *' for the ** z«/^//-manag-
ing ** of the common property and general interests.
They also implied that the power of Congress was to be
a supervisory or superintending nature — that the Presi-
The Imperial Power, 1787 457
dent was to "manage " and "secure" the common prop-
erty and general interests, and that the Congress was to
"provide," so that under his management, the common
property and general interests should be "well-managed "
and "secured."
The words " individual States " plainly referred to the
dependencies, and the purpose of the clause " in such
manner as shall not interfere with the government of in-
dividual States, in matters which respect only their
internal police or for which their individual authority
may be competent " was evidently intended to convert
the dependencies into constitutional protectorates as soon
as they had attained even a "temporary form of govern-
ment." In passing, it is noticeable that the phrase "in
matters which respect only their internal police " seems
to have been suggested by the terms of the protectorate
exercised by the United States over Vermont, as shown
by its Constitution, in which, after placing the State "un-
der the direction of the honorable American Congress,"
it was declared " that the people of this State have the
sole, exclusive, and inherent right of governing and
regulating the internal police of the same."
The terms of such a constitutional protectorate would
have been impracticable. The Federal Government would
have been powerless to enact a law, even after the most
careful study and investigation had proved that it was
necessary for the " well-managing and securing " of the
dependencies, and even after the dependency interested
had refused to enact such a law itself, if the subject-mat-
ter of the law were such that it related to " the internal
police " of the dependency or if it were such that the
" individual authority " of the dependency were " com-
petent " to its enactment.
Such a limitation as this would have been a legal limi-
tation on the power of Congress. It would have limited
Congress to a distinct sphere of governmental action in
458 The Administration of Dependencies
the dependencies, and the governments of the depend-
encies would have been constitutionally independent of
it in their own spheres. In determining the limits of
such spheres of action, innumerable opportunities for
dispute would have arisen, which would doubtless have
resulted either in the loss of the dependencies to the
Union, or in the abandonment of the limitation.
When the Article of the draft of the Committee on
Detail relating to the admission of new States was
reached in the regular order, on August 30, an amend-
ment, offered by Gouverneur Morris, was unanimously
X adopted, which read :
The Legislature shall have power to dispose of and make all
needful rules and regulations respecting the territory or other
property belonging to the United States.
This provision was incorporated in the Constitution
verbatim except that the word * * Legislature' ' was changed
to ** Congress,"
The clause recommended by the Committee on Detail
was never referred to after Morris's motion was adopted.
In the previous chapters, it has been noticed how the
expression **to dispose of " the dependencies had come
to be the generic expression to describe the Imperial
power and trust, and why it became necessary to add the
words "and make all needful rules and regulations re-
specting " the dependencies. By these words, therefore,
the Imperial power and trust undertaken by the Ameri-
can Union and its people were granted to and imposed
upon Congress, and it shared the responsibility with the
President.
The clause, by referring to "territory or other property
belonging /<7the United States," recognized the American
Empire. It has already been pointed out that the ex-
pression "belonging to," when relating to lands and
The Imperial Power, 1787 459
population under the control of a State, was uniformly
used, both in British and American politics and pub-
lic law, as meaning "dependent upon/* A somewhat
striking example of this technical meaning of the expres-
sion ** belonging to " is found in the Principles of Law and
Polity Applied to the American Colonies ^ published by Sir
Francis Bernard in 1764. In that work, he thus defined
the British Empire :
The Kingdom of Great Britain has, belonging to and de-
pending upon it, divers external dominions and countries; all
which, together with Great Britain, form the British Empire.
By the use of the expression "dispose of and make
all needful rules and regulations respecting," the Ameri-
can Empire was recognized as a Federal Empire. By
these words the American Union assumed the obligation
of recognizing all the natural rights of the depend-
encies and their inhabitants, and hence assumed the
responsibility of recognizing the natural right of state-
hood, on the part of communities external to itself and
under its control, to the degree and within the area re-
quired by their conditions and circumstances.
The use of the words "rules and regulations" was
doubtless due to the fact that the Convention perceived
that the power which an Imperial State exercises over a
dependency is a power exercised by one State for and
over another. The thought underlying these words evi-
dently is that the acts of an Imperial State respecting a
dependency are rules and regulations to which its local
governmental action is conformed, and not strictly legis-
lation or executive action.
Doubtless the principal reason why the word "need-
ful " was preferred to the word "necessary " or the words
"necessary and proper," was that they limited the power
of Congress, in general, to the power of supervision or
460 The Administration of Dependencies
superintendence. The President, being vested with the
executive power, was assumed to have power to make all
rules and regulations which were necessary and proper
in the exercise of the power of disposition, and Congress
was limited in its action to the cases where there existed
a need or emergency for interposition. In this respect,
the clause adopted followed the one proposed by the
Committee on Detail.
Another reason why the word "needful," seems to
have been preferred to the word "necessary" or the
words "necessary and proper " was, in order to particu-
larize the acts of disposition, and to make it certain that
the power of disposition extended to the power of making
different dispositions for the different dependent States
as might be necessary. With the same purpose of par-
ticularizing the acts of disposition, the word "respecting"
was evidently preferred to the word "concerning," the
word "respecting" having the meaning of "concerning
respectively."
The word "needful" has not only the meaning of
"necessary" but the meaning of "adapted to specific
human needs." By its use, therefore, the Congress was
by necessary implication forbidden to assimilate the de-
pendencies to the American Union, except so far as the
local circumstances in each were the same, and was
obliged to recognize each dependency as a State entitled
to a regime adapted to the local circumstances.
The word "needful" in the sense of "adapted to
needs'* gave to the words "rules" and "regulations" the
same meaning as ordojinajices and r^glements. It may be
surmised that the word "rules" was considered preferable
to either "ordinances" or "orders" or "laws" be-
cause if the first had been used, it might have given rise
to a claim that the power of Congress over the dependen-
cies was exactly that exercised by the King of France, if
the second, that it was exactly that exercised by the
The Imperial Power, 1787 461
King of Great Britain, and if the third, that it was ex-
actly the same as that claimed by Parliament. While the
intention of the framers of the Constitution, as shown by
the words used in this clause, was to model, in a general
way, the power of Congress over the dependencies upon
the powers exercised in this respect by the King in
France, and the King in Council in Great Britain, and
while the claim of Parliament to the extent that it was
a claim that the Parliament had the superintending
legislative power over the dependencies was admitted,
it is equally clear that it was the intention that Congress
should not be required to exactly follow the theory or
the practice of either of them. The King of France,
in his disposition of the dependencies by " ordinances
and regulations,'' did not limit his action to such only
as was needful, but claimed the right to paternally
interfere even in the details of the internal life of the
dependencies; and the then reigning King of Great
Britain, in his disposition of the British dependencies by
"orders in Council " or ** regulations in Council," while
exercising a more general control than the French King,
had exercised his powers as if he were under no condi-
tion or moral obligation to exercise them according to
principles or according to the advice of expert men.
The power claimed by Parliament, in the Declaratory
Act of 1766, of making ** laws and statutes," was a
power without condition or limitation, or moral obliga-
tion of any kind, — a power "to make laws and statutes
of sufficient validity to bind the dependencies in all cases
whatsoever.**
The use of the expression ** needful rules and regula-
tions " made it clear that, while the power of the United
States over the dependencies was to resemble the powers
exercised by the King in France and Great Britain in
that it was to be a power of disposition, and was to re-
semble that claimed by Parliament in that it was to be
46o The Administration of Dependencies
superintendence. The President, being vested with the
executive power, was assumed to have power to make all
rules and regulations which were necessary and proper
in the exercise of the power of disposition, and Congress
was limited in its action to the cases where there existed
a need or emergency for interposition. In this respect,
the clause adopted followed the one proposed by the
Committee on Detail.
Another reason why the word "needful," seems to
have been preferred to the word "necessary** or the
words "necessary and proper " was, in order to particu-
larize the acts of disposition, and to make it certain that
the power of disposition extended to the power of making
different dispositions for the different dependent States
as might be necessary. With the same purpose of par-
ticularizing the acts of disposition, the word "respecting"
was evidently preferred to the word "concerning,** the
word "respecting" having the meaning of "concerning
respectively."
The word "needful" has not only the meaning of
"necessary" but the meaning of "adapted to specific
human needs." By its use, therefore, the Congress was
by necessary implication forbidden to assimilate the de-
pendencies to the American Union, except so far as the
local circumstances in each were the same, and was
obliged to recognize each dependency as a State entitled
to a regime adapted to the local circumstances.
The word "needful" in the sense of "adapted to
needs" gave to the words "rules" and "regulations" the
same meaning as ordonnances and r^glements. It may be
surmised that the word "rules" was considered preferable
to either "ordinances" or "orders" or "laws" be-
cause if the first had been used, it might have given rise
to a claim that the power of Congress over the dependen-
cies was exactly that exercised by the King of France, if
the second, that it was exactly that exercised by the
The Imperial Power, 1787 461
King of Great Britain, and if the third, that it was ex-
actly the same as that claimed by Parliament. While the
intention of the framers of the Constitution, as shown by
the words used in this clause, was to model, in a general
way, the power of Congress over the dependencies upon
the powers exercised in this respect by the King in
France, and the King in Council in Great Britain, and
while the claim of Parliament to the extent that it was
a claim that the Parliament had the superintending
legislative power over the dependencies was admitted,
it is equally clear that it was the intention that Congress
should not be required to exactly follow the theory or
the practice of either of them. The King of France,
in his disposition of the dependencies by ** ordinances
and regulations," did not limit his action to such only
as was needful, but claimed the right to paternally
interfere even in the details of the internal life of the
dependencies; and the then reigning King of Great
Britain, in his disposition of the British dependencies by
"orders in Council " or " regulations in Council,*' while
exercising a more general control than the French King,
had exercised his powers as if he were under no condi-
tion or moral obligation to exercise them according to
principles or according to the advice of expert men.
The power claimed by Parliament, in the Declaratory
Act of 1766, of making ** laws and statutes," was a
power without condition or limitation, or moral obliga-
tion of any kind, — a power "to make laws and statutes
of sufficient validity to bind the dependencies in all cases
whatsoever.**
The use of the expression " needful rules and regula-
tions " made it clear that, while the power of the United
States over the dependencies was to resemble the powers
exercised by the King in France and Great Britain in
that it was to be a power of disposition, and was to re-
semble that claimed by Parliament in that it was to be
462 The Administration of Dependencies
exercised by the Chief Legislature of the Imperial State, it
was to differ from that exercised by the King of France
in being limited to the necessity of each case and not
paternal, from that exercised by the then reigning King of
Great Britain by being exercised according to principles
determined by expert advisers, and from that claimed by
Parliament in being exercised with full realization of the
condition, limitation, and obligation attached to it and
for the purpose of supervision or superintendence.
The use of the word **air* before **needful'* made it
certain that there was no limitation upon the power of
the Union other than that implied in the word "need-
ful." It thus made it certain that the Union, in adminis-
tering its dependencies, was not confined to any specific
sphere of action — that, if a proposed "rule " or "regfula-
tion " was plainly "needful" in the exercise of the dis-
positive power, it was immaterial whether it interfered
with the "internal police " of the dependency to which
it related, or not. It also made it impossible for any one
to claim that the power of the Union over its depend-
encies was limited in its duration. Madison had sug-
gested a provision which would have confined the Union
to the power to "institute temporary Governments " for
certain dependencies. The Convention, thus having be-
fore them the question whether all administration of de-
pendencies by the Union was to be "temporary " — ^that
is. with a view to their ultimate admission into the Union
or their ultimate independence, declared that the power
of the Union was without limit as to time, and was only
limited by the necessity of each case.
The expression "territory or other property *' was
equally complete and inclusive with the expression "to
make all needful rules and regulations respecting." It
has been noticed that, from the time of the Common-
wealth, the dependencies of Great Britain, when described
as forming with Great Britain the British Empire, were
The Imperial Power, 1787 463
invariably divided into two classes. It is true that dif-
ferent names were adopted for the two classes, but
duality in the classification occurred uniformly. Scien-
tific study has confirmed this duality. There are inevi-
tably two classes, and only two classes, of dependencies
— one manifestly destined, by nature, to be incorporated,
at some time, into the body and personality of the Im-
perial State, and the other manifestly destined never to
be so incorporated. The word ** territory," as has been
already noticed, is, according to its literal meaning, the
word most appropriate, in the English language, to de-
note a dependent region of the former class. It means
a region so near to a State that the State is able without
difficulty to reduce it, at any time, to complete sub-
mission— to terrorize the region, or act as its Territor.
The words **or other property" were those most
appropriate to describe all the regions external to the
Union and subject to its disposition, which were mani-
festly destined never to be incorporated into its body and
personality. They, of course, implied that "territory
belonging to the United States " was "property" of "the
United States of America." This at first glance seems
to be a harsh and brutal statement of the relationship be-
tween the American Union and its dependencies. As a
matter of fact, though cold and scientific, it is neither
harsh nor brutal. The original basis of the power of a
State over any community external to it is that the land
occupied by that community "belongs to " the State as
its "property," and is not a part of its body. The power
of a State over external populations is a power incidental
to and derived from its power over external lands. A
power, therefore, "to dispose of, and make all needful
rules and regulations respecting territory or other prop-
erty belonging to " a State inevitably carries with it, as an
incident, power to dispose of and make all needful rules
and regulations respecting the populations inhabiting the
\
464 The Administration of Dependencies
•'territory or other property." Instead of being harsh
and brutal, therefore, this statement in the Constitution is
exactly the reverse. Instead of basing the power of the
American Union over external populations upon a rela-
tionship assumed to exist between them directly, it bases
the power upon a relationship assumed to exist indirectly
— namely, through a paramount title to the lands occu-
pied, vested in the American Union. In other words,
the theory of the Constitution is, that the inhabitants of
the dependencies are not slaves of th^ American Union,
nor even its wards, (except in certain cases where guar-
dianship is necessary), but that they are permanent
tenants of land of which the American Union owns the
paramount title for public purposes.
This conception was, as has been noticed, nothing
novel or original. It runs through the whole of the Eng-
lish and American public law from the very inception of
the American Colonies. The power of England over its
American Colonies was in almost every case derived from
a grant of the soil occupied by the Colonies to a person
or persons in trust for the Colony. The Constitution
simply universalized this conception, so as to commit
the Union to the theory that its power over all its de-
pendencies, whether arising from voluntary action on
the part of a foreign State in consenting to become de-
pendent, or from the cession by a foreign State of a part
of its territory, or from a grant of unoccupied land to a
colonizing society, or from conquest, was based upon its
ownership of the paramount title, for public purposes, of
the land thus subjected to its disposition.
The description of the Imperial power as a power **to
dispose of and make all needful rules and regulations re-
specting " the dependencies, though expressly applied in
the Constitution to the power exercised by the Union
through the Congress necessarily also qualified the power
exercised by the Union through the President, since the
The Imperial Power, 1787 465
power of an acting agent and the superintending agent
must necessarily be the same in character.
The Constitution not only universalized the con-
ception of the Imperial power and obligation of the
American Union by imposing it upon the whole Gov-
ernment of the Union, and by making it clear that
the power to be exercised over every kind of dependency,
whether arising by voluntary action, by colonization, by
cession, or by conquest, was to be a power of dis-
position, but it also provided for an intermediate
relationship between the American Union and external
communities which was neither a relationship of depend-
ency nor an incorporation into its body. The provision
which now appears in Article IV., Section 3, of the
Constitution, and which reads, "New States may be ad-
mitted by the Congress into this Union," — which was
also drawn by Gouverneur Morris and accepted unani-
mously by the Convention, — was carefully framed, as the
debates show, in this very general and unlimited form,
with the express purpose of allowing States to be ad-
mitted into the Union on unequal terms, in respect to
their representation in Congress or in any other respects
which the Congress might think desirable, as compared
with the States originally in the Union. Such a rela-
tionship of unequal union partakes both of the nature of
incorporation and dependence. It resembles incorpora-
tion, because the States which are in such a situation are
actually represented in the Central Government of the
Union by Representatives in the Lower House at least, and
they may possibly have a Senator and may participate in
the election of the President. It resembles dependence,
because the State so unequally represented, or which is
taken into the Union on terms which place it on a perman-
ent inequality as respects the other States, is, to the extent
of the inequality, subject to the legislation or disposition
of the other States acting as the Imperial State.
466 The Administration of Dependencies
The Constitution, therefore, provided for every possi-
ble relationship between the American Union and the
rest of the world. By the treaty-making power, vested
in the President and Senate, as the Chief Executive for
this purpose, the American Union was recognized as
capable of entering into a treaty with another State by
which the latter should become a protectorate of the
Union, and of entering into treaties by which foreign
States should obligate themselves not to make conquest
of regions under the control of the Union to some ex-
tent, but not yet effectively occupied by it, and thus es-
tablish the "sphere of influence " of the Union over those
regions. By the power to admit new States into the
Union on equal or unequal terms, vested in the Con-
gress, the American Union was authorized to incorpo-
rate any foreign or dependent State into its body and
personality on any terms it saw fit. By the power of
disposition and regulation vested in the President and
the Congress, it was authorieed to allow every relation-
ship known to general public law to exist between itself
and its dependent States and between each dependent
State and each and all the others. In no respect was the
Constitution more complete or more scientifically accu-
rate, universal, and inclusive than in the two clauses
which read: **New States may be admitted by the Con-
gress into this Union *' and "The Congress shall have
power to dispose of and make all needful rules and regu-
lations respecting the territory or other property belong-
ing to the United States."
The clause relating to the administration of depend-
encies was adopted by the Convention as an amendment,
or more exactly, an "addition" to the clause relating
to the admission of new States into the Union. As has
been already noticed, Madison had intended to have the
clause on this subject inserted in the specification of the
legislative powers of Congress, and the Committee on
The Imperial Power, 1787 467
Detail had expressed the same intention in respect to the
clause reported by them. The Committee on Style and
Arrangement, of which Morris was a member, considered
that the clause relating to the administration of depend-
encies had no place in the specification of the legislative
powers of Congress — plainly because they recognized that
the power granted was not legislative in its nature, and
that it ought in some cases to be exercised by the Con- \
gress and in some cases by the President. They there-
fore left it in the same Article with the clause permitting
Congress to admit new States into the Union on equal
or unequal terms. This was strictly logical. The power
to admit new States into the Union was not a legislative
power, but a power to make a contract or treaty with the \i^ |
State to be admitted, which should establish a permanent
relationship on express and definite terms between the
parties to the contract. The power to dispose of and make ^
all needful rules and regulations was not a legislative
power, but a power to fulfil an implied and indefinite
contract of trust or agency, by which the State was under
an obligation to perform services for the benefit of another
State, in pursuance of a relationship existing between
them. These powers were not to be exercised in the
same way as the ordinary powers of legislation. The
power to admit new States was to be exercised by means
of a proposition made by one party and accepted by the -^
other ; the power to dispose of the dependencies was to
be exercised by a decree, ordinance, and disposition
made after careful consideration of the principles ap-
plicable to a statement of facts ascertained by an expert
investigation.
Against one easily possible misconception, namelyv
that admission into the Union was to be the ulti*
mate and expected goal of all States dependent on the
Union, the Convention carefully guarded. Instead o£
following the usual form in the Article relating ta
468 The Administration of Dependencies
admission of States into the Union, according to which it
would have read, "The Congress shall have power to ad-
mit new States into the Union," this form (which was
actually proposed by Luther Martin) was rejected by the
Convention in favor of Morris's form, "New States may
be admitted by the Legislature into the Union," from
which it was made absolutely clear that the admission or
non-admission of States into the Union was to depend
entirely upon the will of the Union, and that it did not
recognize any natural right in any of its dependent States
to be admitted into its body and personality. This idea
was further carried out by the arrangement, in the Con-
stitution, of this clause and the clause relating to the
administration of dependencies so that the former pre-
ceded the latter, — the Committee on Style and Arrange-
ment following Morris's ideas in this respect.
If the order, had been reversed, an argument of
considerable convincing force might have been made,
that it was the understanding of the framers of the
Constitution that all dependent statehood was but a
mere stepping-stone to admission of the dependent States
into the Union, first on unequal and finally on equal
terms with the original States. By placing the clause
permitting Congress to admit new States into the Union
before the clause relating to the administration of de-
pendencies, it was forever rendered impossible to use the
Constitution itself as an argument in favor of any such
unpractical and disastrous proposition.
At the same time that Morris was engaged in framing
these two most important clauses of the Constitution, he
took upon himself to see to it that the expression "the
United States of America" or ''the United States,"
wherever it occurred in the Constitution, should certainly
have the meaning of **the Federal State composed of the
States forming the original Union and those subsequently
admitted into the Union." The moment the words
The Imperial Power, 1787 469
"the territory or other property belonging to the United
States " were inserted in the Constitution, the expression
**the United States *' was inevitably confined to the Fed-
eral State composed of the States so united and admit-
ted, and the United States, together with **the territory
or other property belonging to " it, inevitably formed the
American Empire. The expression "within the limits of
the United States," which had been inserted by the
Committee on Detail in the clause relating to the ad-
mission of new States, was omitted because the expres-
sion "the United States" there meant "the American
Empire." Thenceforth "the United States " was under-
stood to mean the American Union and not the American
Empire. The Committee on Style and Arrangement
therefore struck out the words "of the United States"
as qualifying the executive power, so as to make it
evident that the executive power extended throughout
the American Empire. They confined the exercise of
the legislative power to the American Union by limiting
the powers of Congress to the "legislative powers herein
[in Article I.] granted," and by inserting the specifica-
tion of legislative powers in Article I. They also in-
serted in the specifications of powers relating to taxation
and to legislation concerning bankruptcy and naturaliza-
tion, which it was desirable should be uniform, a pro-
viso that such legislation should be "uniform throughout
the United States." Their evident purpose was thus to
prevent the "legislative powers" of Congress from con-
flicting with the power "to dispose of and make all need-
ful rules and regulations respecting" the dependencies,
and to keep the legislative power and the Imperial
power forever distinct. They left the words "of the
United States'* as qualifying the grant of the judiciary
power to the Supreme Court and the "inferior Courts,"
in order to make it certain that that power was con-
fined to the American Union, and that these Courts
470 The Administration of Dependencies
were to be entirely distinct from the Courts of the Ameri-
can Empire and from the local Courts of the American
dependent States.
It has been supposed that the power "to dispose of "
the dependencies includes the power to sell the rights of
the American Union over them to a foreign State. There
is, however, contemporaneous evidence of the highest
character against this construction. In the Convention
of the State of Virginia which met on June 2, 1788, to
consider the question of the ratification of the Federal
Constitution, an amendment was proposed which pro-
vided as follows :
No treaty ceding, contracting, restraining or suspending
the territorial rights or claims of the United States, or any of
them . . . shall be made, but in cases of the most urgent
and extreme necessity, nor shall any such treaty be ratified
without the concurrence of three-fourths of the whole number
of the members of both Houses respectively.
Governor Edmund Randolph, who, as already noticed,
had headed the Virginia delegation in the Convention
and presented the Virginia resolutions, opposed this pro-
posed amendment, saying:
Of all the amendments, this is the most destructive, which
requires the consent of three-fourths of both Houses to
treaties ceding or restraining territorial rights. . . . There
is no power in the Constitution to cede any part of the territories
of the United States, But this amendment admits, in the fullest
latitude, that Congress have a right to dismember the Empire.
It has also been supposed that the provision of Article
VI. which makes the Constitution and the laws of the
United States made in pursuance thereof *'the supreme
law of the land" has some reference to the administra-
The Imperial Power, 1787 471
tion of dependencies. In Magna Charta the provision
in which the expression "the law of the land " occurs
reads as follows :
No free man shall be taken or imprisoned or dispossessed or
outlawed or banished or in any way destroyed, nor will we go
upon him, nor send upon him, except by the legal judgment of
his peers or by the law of the land.
The words "the law of the land" here undoubtedly
mean the law of England. This provision of Article VI.
is almost verbatim in the words of Pinckney's draft of
the Constitution, with the single exception that the
words "the Constitution of the United States" are
added. In that draft, the Congress was given no power
whatever in the administration of dependencies, and yet
all Acts made by the Legislature of the United States
pursuant to the Constitution were declared to be "the
supreme law of the land." The Constitution and laws of
the United States are the supreme law of the land in the
American Union ; they are only the basis of the supreme
law of the land in the dependencies of the American
Union, because these dependencies are under an un-
written Constitution based on the Constitution and laws
of the United States.
That the clause presented by Gouverneur Morris relat-
ing to the administration of dependencies should have
been accepted so promptly by the Convention was not
surprising. By his action in conducting the negotiations
between the Congress and the British Government in
1778, followed by his masterly statement, in his Observa-
iions on the American Revolution^ of the whole position
taken by the American Colonies in their contest with
Great Britain, he had made himself the leading authority
in America upon all Imperial questions. In crowding
into one short sentence a complete description of the
472 The Administration of Dependencies
Imperial power and obligation, as America claimed it to
be, he had but fulfilled what the Convention had expected
of him. Evidently they recognized instantly that there
was no room for debate or criticism — that the clause was
complete and perfect in itself.
From the exercise of power subject to the Imperial
obligation, the District of Columbia was excepted. In
that dependency, Congress was given power "to exercise
exclusive legislation in all cases whatsoever," and this
specification of power was placed in the list of specifica-
tions of the ** legislative powers" of Congress. Within
the District of Columbia, the Congress has exactly the
same powers as were claimed by the British Parliament
over the American Colonies by the Declaratory Act of
1766, — a power "to make laws and statutes of sufficient
force and validity to bind [the District] and its inhabi-
tants in all cases whatsoever." The District of Columbia
has no inherent right of statehood. The political rights
are only such as Congress shall grant of its mere will, as
a "privilege" or "indulgence." This is necessary, in
order that Congress and the President may be free from
local influence. The very fact that the two kinds of
power are so separated and distinguished in the Consti-
tution serves to show the great distinction between the
powers themselves. The power to "legislate" for the
District of Columbia is the Magisterial power to command
and govern : the power to "dispose of and make all need-
ful rules and regulations respecting ** the other dependen-
cies is the Imperial power to administer and govern.
It will be remembered that Grotius, in the passage
which has been already quoted, said :
It is well worth our observation that what the Latins ex-
press by the word imperare^ to command, the Greeks more
modestly express by the word racfcf^iv^ to dispose or set in
order.
The Imperial Power, 1787 473
The British had expressed the Imperial power in the
same way as had the Latins. The Americans repudiated
this definition of the Imperial power, but did not fall into
the mistake into which the Greeks had fallen. The too
great haughtiness of the Romans had resulted in a loss
of power through excessive centralization. The too
great modesty of the Greeks had resulted in an entire
absence of power because of the lack of centralization.
The Americans chose the middle ground. That which
the Romans called the power to command and which the
Greeks called the power to dispose or set in order, the
Americans called the power to dispose or set in order
and to command accordingly. /*
CHAPTER XXIV
EUROPEAN ADMINISTRATION, I787-I902
JUST at the moment that the Constitution of the
United States was being framed, France entered
upon a period of experimentation in the matter of
the administration of itis dependencies. Louis XVI., in
March, 1787, granted to^he Provinces of France the
right to elect local Parlements^ with restricted and pro-
visional powers of legislation; and in June, 1787, he
granted the same right to the French Colonies in the
West Indies. The consequence was that when the Revo-
lution broke out, these Colonies demanded representation
in the General Assembly of France, taking the ground
that, as the principles of liberty, equality, and frater-
nity were universal, France and its dependencies consti-
tuted a Unitary State, and that the dependencies could
not be excluded from proportionate representation in the
General Assembly. On July 4, 1789, deputies elected
by the Colonial Legislature of San Domingo presented
themselves in the Assembly and demanded the full rights
of deputies from the domestic Provinces. After a long
debate, their demand was granted. On October 14, in
the same year, deputies from Martinique made a similar
demand, and were admitted, and their example was fol-
lowed July 7, 1790, by deputies from Guadaloupe, with
the same result. In March and April, 1790, the General
Assembly took up the colonial question and resolved that:
While this Assembly considers the Colonies as a part of the
French Empire and desires to grant them the enjoyment of the
474
European Administration, 1 787-1 902 475
fruits of the happy regeneration which is now going on, it has
never intended to include them in the Constitution which it
has decreed for the Realm, and to subject them to laws
which might be incompatible with their local and particular
requirements and customs.
The General Assembly, therefore, authorized the Colo-
nies, through their deputies, **to make known their wishes
in regard to the Constitution, the legislation, and the ad-
ministration which would be best adapted to their needs,"
and permitted them to elect Local Assemblies whose
powers should be on this basis of relationship. A Colo-
nial Committee of twelve members was named, charged
with drawing up a plan for a Constitution which should
serve as a model for all the Colonial Constitutions, but
which should be merely for the guidance of the Colonial
Assemblies, they having full permission either to use it
only in part or not to use it at all, as they saw fit. The
committee reported a guide-plan as directed, and by
order of the Constituent Assembly it was sent to the
Colonies on June 15, 1791.
Meantime, in May, 1791, political rights as citizens
had been granted by the Constituent Assembly to free
negroes, and the negroes in the West Indian Colonies had
become excited by the prospect of freedom held out to
them by the speeches of the Revolutionary radicals and
by the actions and publications of the French Society
for the Abolition of Slavery. Before the permission had
arrived from France to form Colonial Assemblies on the
new basis, they had been formed by the white popula-
tions, in the interest of the whites; and §in organization
was immediately formed among the white populations to
start a reactionary movement which would make the
Colonies independent of France and thus prevent the
abolition of slavery, on which institution they felt
the prosperity of both the white and the black population
476 The Administration of Dependencies
depended. By the time the top liberal terms of rela-
tionship offered by the French National Assembly were
transmitted to the West Indian Colonies, these Colonies
were not only in a state of organized rebeUion against
France, but in a state of civil war between the whites and
the negroes.
In the Constitution of September, 1791, it was pro-
vided that :
The Colonies and French possessions of Asia, Africa, and
America, although they form a part of the French £mpire, arc
not comprised in the present Constitution.
This Constitution fixed the number of representatives
at 745, ** independently of those which may be allowed
to the Colonies." To the General Assembly of France
was reserved the decision of questions relative **to the
exterior regime of the Colonies, to the organization of the
courts, to the defence of French interests, and to the carry-
ing out of engagements between the French traders and
planters and the natives" — all other matters being left
to be finally determined by the Colonies themselves.
The abolition of slavery throughout France and all its
dependencies I)y vote of the Convention, in 1794, re-
moved the last obstacle to the universal application of
the principle of equality between individuals, and ac-
cordingly, in order both to make the application of the
principle universal and to put an end to all the hopes of
the planters that a separation of the Colonies from France
might be brought about, the political organism composed
of France and its dependencies was declared to be a
Unitary State' by the Convention, in the Constitution
of 1795, in the following language:
The French Colonies are integral parts of the Republic and
are subject to the same constitutional law. . . . They
shall be divided into D^partements.
European Administration, 1 787-1902 477
All laws enacted under this Constitution were to be
ipso facto applicable, without distinction, to the Colonies
then belonging to France. Some Colonies, theretofore
separate, were united so as to form a single D^partetnent ;
but San Domingo, where the race war between the whites
and the blacks was raging most fiercely, and where the
local organization was most complete, was divided into
several D^partetnents.
In 1798, by statute, this principle of uniformity was
extended so as to assimilate the colonial Dipartetnents
to the domestic Depart ements in all matters of finance
and taxation, and the system of elective judges and jury
trial in force in France was extended to the Colonies.
During this period of uniformity and assimilation, the
Colonies were proportionally represented in the Assem-
blies of France.
Speaking of the effect of this policy, M. Arthur Girault,
in his work, Les Principes de Colonisation et de Legislation
ColoniaUy published in 1895, says:
In spite of this, the Colonies made lively opposition to all
the measures which the Assemblies adopted in relation to
them. They accepted the advantages of assimilation, but they
were unwilling to submit to its burdens, being of a mind to
govern themselves. ... In fact, moreover, our Colonies,
altogether too far distant for the Revolutionary Government to
be able to make its will respected among them, passed through
a period of trouble and confusion. Some, like Martinique,
were in the hands of the English. San Domingo was devas-
tated by a frightful civil war. Toussaint TOuverture and
Victor Hugues did as they pleased there. In the Colony of
Reunion, the Colonial Assembly governed the island accord-
ing to its whim. It was anarchy.
With the consulate of Napoleon came the reaction
against the Revolutionary sentiments, and the political
478 The Administration of Dependencies
organism composed of France and its dependencies was
again recognized as an Empire. The Constitution of
1800 provided that :
The regime of the French Colonies shall be determined by
special laws.
Two years later, the Legislature delegated to Napoleon
Its power over the Colonies for ten years by an Act which
provided that :
All previous laws to the contrary notwithstanding, the regime
of the Colonies is submitted, for ten years, to the regulations
which shall be made by the Government.
The moral obligation of France to exercise its functions
towards these dependencies in an expert manner, and the
federal nature of the Empire composed of France and its
dependencies, was immediately recognized by Napoleon,
by the establishment of a Colonial Council at Paris, com-
posed in part of persons appointed by the French Gov-
ernment and in part by persons elected by the appointed
Legislatures of the dependencies. France was convinced,
for all time, that popular government of aggregations of
communities was limited to those which are contiguous
and homogeneous, and from that time forward never de-
parted from the proposition that the dependencies were
entitled to a special and particular administration differ-
ing from that of France.
The Constitution of 18 14 provided that : **The Colonies
shall be ruled by particular laws or regulations" — the
word laws (Jots) referring to the action of the Parliament,
and the word regulations (rdglements) to the action of the
Executive. The administration of the dependencies,
under this Constitution, drifted inevitably into the hands
of the Executive, and during the period from 18 14 to
European Administration, 1 787-1902 479
1830, a great number of careful and scientific regulations
for the Colonies were made by royal ordinances. In
1830, the jealousy felt by the Legislature of the Execu-
tive, due to the claims of arbitrary power in France made
by Louis XVIIL and Charles X., led to a return to
administration of the dependencies by the French
Parliament. In the Constitution of 1830, the words
"and regulations" were omitted, so that the provision
read: "The Colonies shall be governed by particular
laws."
By the Constitution of 1848, it was provided:
The territory of Algeria and the Colonies is declared French
territory, and shall be ruled by particular laws until a special
law places it under the regime of the present Constitution.
In the Constitution of 1852, the provision was: "The
Senate shall rule the Constitution of Algeria and the
Colonies by s/natuS'Consultes*' — that is, by action taken
by the Senate alone as a deliberative and legislative body.
The constitutional laws of France which since 1875
have formed its Constitution do not specifically cover the
case of the dependencies, and the s^natus-consultes made
under the provisions of the Constitution of 1852 are still
considered to be in force, though not to the extent of
preventing the operation of the general rule that a law
of Parliament controls every other law or regulation.
The Colonies of France remained under the direction
of the Minister for the Marine until 1881. In that year,
the administration of the Colonies was committed to the
Minister for Commerce, and placed in the special charge
of an Under-Secretary for the Colonies. A little later,
the administration was again attached to the Ministry for
the Marine; later it was again attached to the Minis-
try for Commerce; and still later was again attached
to the Ministry for the Marine. Meanwhile the business
of the administration of the Colonies had fallen under the
48o The Administration of Dependencies
charge of a permanent Under-Secretary, and had become
independent of both the Ministry for the Marine and
the Ministry for Commerce. On March 20, 1894, by a
law of the French Parliament, the administration of the
French dependencies was placed in the charge of a Min-
ister for the Colonies. This action was taken with great
deliberation, and after a very careful examination of the
whole subject by the members of the House and Senate
familiar with the requirements of colonial administration.
Neither Algeria, Tunis, Madagascar, nor the protectorates
of Indo-China were included within the jurisdiction of the
Minister for the Colonies. Algeria was placed within the
jurisdiction of the Minister for the Interior, and Tunis,
Madagascar, and the protectorates of Indo-China within
the jurisdiction of the Minister for Foreign Affairs.
In the year 1883, while the administration of the
French Colonies was in the hands of the Minister for the
Marine, there was established, by decree of the President,
an Imperial Council, attached to the Under-Secretary for
the Colonies, called Le Conseil Sup/rieur des Colonies^ com-
posed of persons expert in colonial administration, whose
duties were to advise the Under-Secretary. This Council
was remodelled in 1890, as the result of the action of the
French National Colonial Congress, held at Paris in De-
cember, 1889, and February, 1890, which arose out of the
International Colonial Congress held in August, 1889, in
connection with the Universal Exposition. The action
of the Congress was expressed by the following resolution :
The Congress — considering that the representation in the
National Parliament of some of the Colonies requires, as a
logical correlative, the establishment, for the benefit of the
Colonies not represented, of a special system of consultation ;
considering, also, that the former regimes applied to the Colo-
nies gave to them the necessary guaranties in this respect,
either by the institution of Local Legislatures invested with
European Administration, 1 787-1902 481
power to manage their purely internal affairs, or by the organi-
zation in the Imperial State of Councils-General, in which the
decisions of the Government might be debated before being
put in force in these countries — express the opinion that an
organic law should be enacted, instituting, in connection with
the administration of the Colonies, a Superior Council of the
Colonies, composed as follows: — etc.
In accordance with this resolution, the Superior Council
for the Colonies as remodelled by decree of the Presi-
dent, was composed of the Senators and Deputies of the
Colonies represented in the French Parliament, delegates
from the other Colonies, seventeen barristers having spe-
cial knowledge of administrative law, persons nominated
by the French Government because of their expert know-
ledge of colonial affairs and administration, delegates from
the Chambers of Commerce of the principal French cities,
and delegates from societies formed for the study of co-
lonial and geographical questions. When the office of
Minister for the Colonies was established in 1894, this
Council was continued and was attached to this Ministry.
M. Boulanger, the first Minister for the Colonies, in a
report to the President of the Republic, of May 5, 1894,
speaking of the functions of France, as the Imperial State,
towards its dependencies, said :
In establishing a Ministry for the Colonies, the Parliament
has recognized the necessity of making certain important
modifications in the workings of the Central Administration,
in order that it may fulfil the heavy task imposed upon it by
the extension of our Colonial domain.
The principal divisions of this Ministry ought to be so con-
stituted as to accomplish the following results:
In the first place, it is necessary to assure to our possessions
an administration which is actuated by the highest sentiments
of order, of justice, and of scrupulous equity, which shall give
to persons who immigrate into the Colonies and to the natives
3«
482 The Administration of Dependencies
a knowledge and understanding of their rights and a respect
for their duties, which shall let it be known to all the world
that France, however far distant, proposes to exercise upon its
Colonies its moral and civilizing influence. It is important
that the administration should be decentralized enough not to
interfere with the initiative of the Colonies and to prevent
their free development, but it is necessary that it should con-
serve the sovereign authority necessary to safeguard the gen-
eral interests of the whole political organism composed of
France and its dependencies (Us intMts gin/raux du pays)^ to
protect, whenever necessary, our foreign possessions against
their own weakness, and to maintain at every point on the
earth's surface where the French flag floats the unity of pur-
pose indispensable to the prosperity of the Colonies.
In the second place, the administration ought to have for
its object the procuring for our different possessions the en-
jo3rment of institutions suitable to the nature of each, of coun-
tenancing and supervising the exploitation of their natural
resources, and of placing and keeping their relations with the
Imperial State upon a just, coherent and orderly basis.
It was obviously implied in this statement that the
"sovereign authority " of France over its dependencies
was not unconditional and unlimited, but only such a
power as was ** necessary" to safeguard the general in-
terests of the Empire, to protect the respective depend-
encies from their own inherent weaknesses, and to
maintain a unity of purpose throughout the whole politi-
cal organism composed of France and its dependencies.
Some of the recent French writers on the administra-
tion of dependencies admit only two possible views of the
power of a State over its dependencies — the first, that it
is the same as its power over the integral parts of the
State ; and the second that it is the same as that exer-
cised by the State in or for an independent State, under
a treaty with that State. In either view, the condition
of dependence is a temporary one, and for the purpose
European Administration, 1 787-1 902 483
of preparing the dependency either for complete inde-
pendence or for complete incorporation into the body and
personality of the State. These two conceptions of the
power of the State are the only ones admitted by Pro-
fessor Edouard Petit, in his monumental work entitled
Organisation des Colonies Franqaises et des Pays de Pro^
tectorat, published in 1895. Other writers, notably M.
Arthur Girault, in his essay entitled **Theorie G^n^rale de
la Colonisation," printed as a preface to his Principes de
Colonisation et de Legislation Coloniale^ published in 1895,
admit a third conception, namely, that the power of the
State is a power over the individual inhabitants of the
dependencies, who, if not of French origin or entitled to
rights by treaty, have no political rights as against France
and only the fundamental civil rights. A State which is
devoted to the first conception of its powers is said to
be devoted to the policy of assimilation {l* assimilation);
one devoted to the second conception is said to have the
policy of autonomy (/ ^ autonomies ; and one devoted to the
third, the policy of assubjectization {J*assujetissement).
M. Girault is of the opinion that none of the three
conceptions is exactly correct, and that, while the general
principle of the second is correct, the true conception is
arrived at by combining all three conceptions. He thus
closes his essay :
This policy [of assimilation], of the principle of which we
approve, must be both moderated and eclectic — by "moder-
ated " I mean disengaged from certain unfortunate exaggera-
tions, and carefully distinguished from a uniformity contrary
to* the nature of things, and by "eclectic," borrowing from
the two other systems what is good in them, namely, the unity
of authority from the principle of assubjectization, and ex-
tended local liberties and wide decentralization from the
principle of autonomy.
It is an interesting fact that the recognition of the
'ZiXDS^
^tiii^sTs^ yjyr •r ai c. yv9-^ DC
f'.Kif:^ ^.-^^vTiifc" wiirj ▼"as
< itf.:?«Ct *rxiir.*rrj'i*:. it hits 2
\^'/y^jtL CfTvrr.'irricitrt- the
;/'/»*y vf 4iW»-o;*r:t:z.ati'yt-
'/fjjfcf.i-L law tl'-*: Ccr;s:it-tion5 of liic ilijirfinmrm ^
Kti^j^f^Au^ by ^tit-t*: the saost impcartanr ^'^^f"^,'!*^
ti'/f.t, b-rtails of the adxninistratiaai »« Pf'^''*'*^ J '
tfj-: 'tKf.r^.^ of the (jueen or by resolotians ^-^^^^-f.
W/^\ ^ioverr.or.Ger.eral, who acts after adrisi^ *«^ ■
hx^xutiv-t O^uncil of experts. The inhalMtaiiB fl«»
'i^.\iKn'\tuc\*t% arc not consulted, and no qucsrtianof alw»-
ifij{ th'rm reprcMm tat ives in the States-General has
In iX/y5, the French Government made a statement «
if« vi«rwj* on the subject of the relations of France to©
#l-Tli#:ndcncicH which went far beyond the views of anvol
the writern on the subject. This statement was madcfl
mipiiort of a project of law proposed by the French ^^**^
1o !h#! I'iirliiiineiit for an Act to be passed declaring Mada-
^^lMc ;ir, which was then in the military occupation ol
I'liiiH r (it h.ivinjj been previously a half-sovereign State
uiiilrr pnitrcljjHi of France by treaty, and a revolt having
u( iinrril whicli I^Vanco had suppressed), to be annexed to
Im.iiuc! as a Vvv\\i:\\ Colony. It was objected that annexa-
tion w«)uhl imply tliat the French Constitution and la^s
writ- ill forco in Madagascar exactly as they were in France.
In opposition to this, the Minister for the Colonies
niinlr a statement before the Committee of the Chamber
i»f nri>vities in which he said:
The project of law presented by the Government does not
European Administration, 1 787-1 902 485
carry with it, as a necessary consequence, any modification in
the administration of the country or require the immediate
application of French legislation in its entirety to the dififerent
tribes which are scattered over the vast territory of the island.
In other words, the expression, "French Colony," as ap-
plied to Madagascar does not necessarily imply the creation
of a complicated administration, because it is possible to ad-
minister and organize our new Colony by utilizing the assist-
ance of the local authorities and institutions. . . . This
measure is not such as amounts to substituting, ipso facto ^ the
institutions of the Imperial State for those of the dependent
country, because the well-defined policy of the Government is
toward a progressive amelioration in the legislation of the
natives, by borrowing (empruntant) from our own legislation,'
in proportion to the needs and according to the circumstances,
whatever it contains which is applicable to populations of
different races, which are for the most part very far removed
as yet from our ideas of civilization.
The law in project, from an international point of view,
annuls the personality of the Madagascan State, which will
disappear as a juridical entity, and become a dependency of
the French sovereignty; but it cannot have the effect to annihi-
ate the personal status of the natives, who cannot reasonably
be subjected, without a period of transition, to the exigencies
of our "civil life," nor can it abrogate the local laws or
usages.
The report of the Committee, after quoting, as above,
the words as of the Minister for the Colonies, proceeded
as follows :
It is wrong to confound annexation and assimilation. An-
nexation is the act of incorporating, whether by cession, con-
quest, or purchase, new territory into the national domain;
giving to it, or leaving to it the government which best suits
its needs. Assimilation is a form of administration in all re-
spects conforming to that of the Imperial State. This latter
method of administration, which is applicable only when
486 The Administration of Dependencies
populations of the same origin, which have arrived at the
same degree of civilization, are concerned, would not be at all
suited to natives having different manners and customs.
This statement came very near to recognizing that the
French dependencies have an inherent right of statehood.
The French Government, in making the statement, neces-
sarily denied that by annexation of territory the Consti-
tution and laws of France become the Constitution and
laws of the annexed territory. They admitted that the
"legislation of the natives" continued after annexation,
and that French legislation, in so far as it operated as
legislation within the dependency, operated by a process
of ** borrowing," — the borrowing extending only to such
parts as were ''applicable," considering the local "needs"
and "circumstances" of the dependency. It seems not
too much to say that this statement, followed as it was
by the passage by Parliament, in 1896, of the Act pro-
jected, committed France to the proposition that its
power over its dependencies is a power distinct and
different from its power as exercised within the State of
France, and conditioned and limited so as to be properly
described as a power of disposition.
The proposition that the dependencies of France are
subject only to a conditional and limited power of the
State of France is but a natural extension of the French
theory concerning the nature of all governmental power.
According to the French view, all governmental power ex-
cept that exercised by an elected representative Assembly
is regarded as the result of a previous expert investigation
and adjudication. The acts of the President of the Re-
public are called decrees {ddcrets). The regulations made
by a Minister for the purpose of carrying into effect the
laws of Parliament or the decrees of the President are
called arrSt^s, while the judgment of a court is called
arr^t — both words containing the idea of adjudication
European Administration, 1 787-1 902 487
and decision. The tendency, throughout all administra-
tion emanating from or affected by French ideas, to re-
gard all administrative functions as having a judicial
aspect is well known. The institution, known as the
Council of State, which exists in France as a court of
last resort in all cases involving the application of the
public law to the individual and as an advisory council
for the Parliament and the President, unconnected with
the Ministry except as the Ministry follows its advice
given on matters referred to it, is but an evidence of the
French theory which has survived from the earliest times.
The establishment of the Colonial School in Paris by
decree of the President, of November 23, 1889, was a
recognition of the Imperial power as a power of disposi-
tion. This school, which is attached to the Ministry for
the Colonies and administered by a Council named by the
Minister for the Colonies, is an institution partly public
and partly private, being supported in part by grants made
by France and by the Colonies, in part by private dona-
tions and legacies, and in part by tuition charges. It is
open both to young men from the Colonies and from
France. The purpose is to fit the inhabitants of the
French dependencies for their own government, and to
fit the French Government to most expertly perform its
functions as the Imperial Government, by training up
young men to perform these different functions.
Though Algeria is a dependency so near to France
that its ultimate incorporation into France might under
some circumstances be practicable, yet the great differ-
ence between the native population and the French
renders it extremely improbable that such incorporation
can ever occur. Since 1870, it has been represented in
the French Parliament on the basis of the French popu-
lation of Algeria, — that is, on unequal terms as compared
with the D^partements of France.
Since 1866, the Colonies of Reunion, Martinique, and
488 The Administration of Dependencies
Guadaloupe have each been represented in the Chamber
of Deputies of France by two Deputies and in the Senate
by a Senator. French India has one Deputy and one
Senator, and Senegal, Guiana, and Cochin China have
each a Deputy.
In spite of this representation, however, all leg^islation
of the French Parliament is not ipso facto in force in the
dependencies. If Parliament by express words extends
a law to some or all the dependencies, it is in force ac-
cordingly. As respects native-born Frenchmen residing
in the dependencies, all laws of France protecting the per-
son and property are regarded as being in force ipso facto.
While France allows to some of its dependencies a very
considerable autonomy, — even permitting some of them,
under its supervision, to regulate their own tariffs, and
while it respects the privilege of Colonial Assemblies to
grant taxes, yet every act of the dependencies is under
the supervision and control of the French Government.
In theory, the dependencies are yet only "prolongations
of the soil" of France, to use the expression of M.
Girault. Napoleon's epigram, '* Lh ok est le drapeau^ Ih
est la France^*' is taken as an axiom, while at the same
time the march of events is contradicting it. The admin-
istration of Tunis, since 1881, as a protectorate of France
under such conditions that it may perhaps be called a
"constitutional protectorate," though having the form
of an ** international protectorate," is an illustration of
the advantage to be derived from treating dependencies
as entitled to inherent rights of statehood, and preserv-
ing, to the utmost degree consistent with the general in-
terests, the local habits and customs. The same system
of constitutional protectorate has been applied by France
in the management of some of its African and East Indian
possessions which it was necessary to isolate.
It thus appears that the present tendency in France is
towards the solution of the problem of the administration
European Administration, 1 787-1902 489
of dependencies by a compromise between popular and
expert government, according to which the right of rep-
resentation is extended to even very remote depend-
encies, while at the same time the dependencies so
represented are actually given an expert administration
through an Imperial Department.
At the same time, there undoubtedly exists an oppos-
ing tendency which makes for a more and more complete
differentiation of the dependencies from the Imperial
State. Even in the case of Algeria, the policy of assimi-
lation which prevailed unquestioned from i860 to 1885
is now regarded as a general plan, not likely, in the im-
mediate future, to result in the incorporation of Algeria
into the body and personality of France — or, to use the
words of M. J.-C. Paul Rougier, in his Precis de Ligis-
lation et d'Aconomie Coloniale^ published in 1895, **a
plan indicative of the end to be obtained and to which
we shall attain only after centuries spent in changing
the character and transforming the moral conscience of
the Mussulman society." The recent statements of the
French Government seem also to indicate a trend of
thought which, if carried to its logical outcome, can only
result in the conception of the French Empire as a
federal organism, y
Germany, like the United States, began its experience
as an Imperial State by being obliged to control an adja-
cent population which was not capable of immediate
assimilation but which was manifestly destined to incor-
porated into the body and personality of Germany. The
acquisition of Alsace-Lorraine, as the result of the Franco-
German War, in 1871, raised a problem which, in its
general features, resembled the problem which the United
States worked out by the Ordinance of 1787 for the
490 The Administration of Dependencies
government of the Northwest Territory. The reasons
why the populations of the adjacent regions could not be
immediately assimilated were entirely different, but the
fact of this impracticability was the same in both cases.
In passing, it may be noticed that the description of
the political organism composed of the German States,
as "the German Empire/* was a recognition of the prin-
ciple underlying the description of a State and its de-
pendencies as a Federal Empire — it being ail organism
composed of States, of which Prussia was the Imperial
State for some purposes.
Some German and Swiss writers, following the classifi-
cation originally suggested by Dr. J.-G. Bluntschli, in his
Geschichte des Schweitzerischen Bundesrechts^ published
between 1848 and 1859, regard Germany as a Federal Em-
pire {Bundesreich), Dr. Edward A. Freeman, in his essay
entitled ** Bases of National Unity," printed in a volume
of essays entitled Britannic Confederation, edited by Mr.
A. S. White, published in 1892, also took this view. His
words were :
The position ... of the State of Prussia quite cuts oflF
[Germany] from being reckoned as a real Federation. If
anything, it is rather a Federal Empire, an Empire in the
shape of a Federation.
By ''Federation,** in this extract, is really meant, as the
context shows, "Federal State."
Germany, however, dififers from a true Federal Empire
in having a representative Central Government, and
therefore most writers classify it as a Federal State.
M. Louis LeFur, in his J^tat F^d/ral et Con/^d/ration
d* &tats, published in 1896, takes this view, and intimates
that the term Federal Empire is only properly applicable
to "a State formed by the union of a Sovereign State and
one or more dependent States.*'
European Administration, 1 787-1902 491
Upon the acquisition of Alsace-Lorraine, the German
Government, recognizing it as a dependency destined
for ultimate incorporation into the body and personality
of Germany as a State of the Union, but not capable
of immediate incorporation because of the hostility of the
inhabitants and their devotion to French customs and
traditions, gave to the region of Alsace-Lorraine the
name and description of Reichsland, **the land of the
Empire** or **land belonging to the Empire,** distinguish-
ing it from the Schutzgebietey '*the foreign protected
dominions." Both Houses of the German Parliament
withdrew from all active participation in the administra-
tion in behalf of Germany, by uniting in the enactment
of a law of June 9, 1871, which provided that the politi-
cal power should be exercised in Alsace-Lorraine by the
Emperor. By the Constitution of Germany, the Em-
peror exercises all political power** in the name of the
Empire** — that is, in the name of the State of Germany.
The Imperial Chancellor, who is the immediate official
adviser of the Emperor, became the Minister for the
administration of the relations between Germany and
Alsace-Lorraine, it being recognized that the charge of
the administration of the region could not properly be
given to any of the Executive Departments. A Local
Government was established in Alsace-Lorraine in which
the people of that region had some participation. On
December 30, 1871, by Act of Parliament, a Governor,
with full powers of internal administration, and an elec-
tive Council to assist him, were provided. On July 4,
1879, the local administrative power over Alsace-Lorraine
was, by Act of Parliament, taken away from the Imperial
Chancellor and vested in the Governor assisted by his
Council, and the Governor was made directly responsible
to the Emperor. As the Emperor, in administering the
affairs of Alsace-Lorraine, acts as the representative
of the State of Germany, the action of the German
492 The Administration of Dependencies
Parliament, in placing the local administration of Alsace-
Lorraine in the charge of a Governor appointed by the
State of Germany, assisted by an elected Council, was
a recognition of the dependent statehood of Alsace-
Lorraine, and of a federal relationship between it and
Germany.
Between 1871 and 1873, there was much discussion in
Germany concerning the relation of the Constitution of
the State of Germany to the administration of Alsace-
Lorraine. On June 25, 1873, a law was passed by the
German Parliament providing that the Constitution of
Germany should be in force in Alsace-Lorraine on and
after January i, 1874. Alsace-Lorraine was not, how-
ever, allowed to be represented in the German Parliament
Professor Paul Laband, in the last (French) edition of
his Das Staatsrecht des Deutschen ReicheSy now in course
of publication, speaking of the present situation in Alsace-
Lorraine, arising out of the putting in force of the Con-
stitution in Alsace-Lorraine by the Act of 1873, admits
that it is very difficult to understand exactly what effect
this action had. He says :
By the laws of May 2, 1877, ^^d July 4, 1879, the provisions
of the law of June 25, 1873, were completed and modified, with
the result that the principles which govern the exercise of the
governmental power in Alsace-Lorraine are actually very
complicated.
Since the putting in force of the Constitution in Alsace-
Lorraine, the German Parliament has, in general, exer-
cised the same powers as it exercises over the States of
Germany, but it has not hesitated to exercise such other
powers of supervision and control as it has thought
necessary.
In Germany, as in France, the theory prevails that
all the rights of the German dependencies arise from
European Administration, 1 787-1902 493
the mere will and grant of Germany, as the Imperial
State. Thus, Professor Laband says of the relationship
of Alsace-Lorraine to Germany :
Alsace-Lorraine is not a monarchy, because it has no per-
sonal Sovereign ; nor, on the other hand, is it a republic, be-
cause the people of Alsace-Lorraine are not the depositaries
of the political power. It is an integral part or province
of Germany. The depositary of power in Alsace-Lorraine is
Germany, that is to say, the body of States united to form
Germany, in their theoretical unity, in their political per-
sonality.
The Constitution of Germany recognizes the dass of
dependencies manifestly destined, by reason of their re-
moteness in distance and civilization, never to be incorpor-
ated into the State of Germany under the name of
Schutzgebiete — * * foreign protected dominions. ' * Such de-
pendencies are, by the Constitution, placed in the immedi-
ate control of the Emperor, who by its terms exercises
"the protective power " over them. The administration
of the foreign protected dominions is in charge of the
Imperial Chancellor, in his capacity as Secretary of State
for Foreign Affairs, . there being in the Ministry for
Foreign Affairs a special division devoted to this branch
of administration. Nearly all the foreign protected do-
minions consist of tropical or semi-tropical lands and
populations, and the original occupation by Germany of
these regions has usually arisen out of the occupation
of merchants, followed by the occupation of colonizing
and exploiting companies. These companies have, in
most cases, surrendered to Germany the governmental
powers which they have assumed or obtained by conquest
or treaty from the natives. Professor Laband calls the
Schutzgebiete ** protectorates under the general public
law," as distinguished from ''protectorates under the in-
ternational law."
494 The Administration of Dependencies
Almost simultaiveously with the reorganization of the
Colonial Council in France (on October lo, 1890), there
was created, by a decree of the Imperial Chancellor, an
advisory Council of experts, attached to the division of
the Foreign Office having charge of the administration
of the foreign protected dominions. This Council is com-
posed of an undesignated number of persons having special
knowledge and experience in colonial administration,
named by the Imperial Chancellor, together with repre-
sentatives of those colonizing and exploiting companies
which are formally under the protection of Germany
through letters of protection issued to them by the Em-
peror, or which are engaged in operations of importance
without formal protection.
By Act of Parliament of March 30, 1892, the budget of
each foreign protected dominion is required to be kept
separate from the budget of Germany, and from that of
Alsace-Lorraine, and from those of the other foreign
protected dominions, so that the tax and revenue laws
of each dependency are adjusted to its own budget.
Thus in this most important respect of financial isola-
tion, the statehood of the German dependencies is pre-
served.
Professor Laband, speaking of the relation of the
foreign protected dominions to Germany, says :
The Schutzgebiete are not foreign territoiy as respects Ger-
many ; they belong to Germany. . . . They are not incor-
porated into Germany; they do not form part of that portion
of the earth's surface which constitutes the material basis of
the political personality of Germany; they are not elements,
but dependencies of the territory of Germany.
*• * • • • • . .
It is proper to say that the territories of the Schutzgebiete
are "foreign ** when one is speaking of the force and applica-
tion of the laws of Germany, of the jurisdiction of officers,
European Administration, 1 787-1902 495
and of the effect of administrative acts and decisions, for in
this sense the word ** foreign** is not used to describe that
which is subjected to a foreign political power, but to describe
territory other than that which the Constitution has set apart
in order to make of it a juridical unity.
The most recent German writer on general public law,
Dr. Georg Jellinek, in his book entitled Das Recht des
Modernen Staates^ published in igcx), recognizes the dis-
tinction between dependencies destined for incorporation
into the Imperial State and those destined never to be so
incorporated, by dividing all dependencies into two great
divisions, one of which he calls landals integrirend Siaais-
gliedy — **land as an integral part of the State," — and
the other nebenland. He describes land als integrirend
Staatsg/ied {"which, it is at once evident, corresponds to
the Reichsland of Germany and the "Territories" of
America) as follows :
A region of this kind is, in greater or less degree, subordi-
nated to the State and is organized with reference to the ex-
clusive interest of the State, as a province, whose participation
in the corresponding life of the State is limited.
Dr. Jellinek thus describes the nebenland:
To a region of this kind, from its nature, there pertains a
separate political existence, so that it can have no participation
in the life of the dominant State. This is the case with all
Schuizgebiete and Colonies, to which no participation in the
Parliamentary deliberations of the collective State is allowed ;
whose administration shows a wide differentiation from that
of the State, so that they appear, not as integral and constituent
parts, but rather as mere connected parts of the State; and
which, for this reason, without coming into contact with its
inner life, may be almost entirely separated from it.
The possibility of regarding dependencies as States in a
496 The Administration of Dependencies
federal relationship with the Imperial State has not
escaped the attention of the German scholars, but they
unanimously oppose such a conception as applied to the
Schutzgebiete. Professor Georg Meyer, in his Die StaaiS'
rechtlicfie Stellung der Deutschen Schutzgebiete^ published
in 1888, denied their statehood, and he was supported in
this position by Professor Carl von Stengel in his Die
Deutschen Schutzgebiete^ ihre rechtliche Stellung-^ Verfas-
sung und Verwaltung, published in 1895, and by Laband
and Jellinek.
It thus appears that though, in Germany, as in France,
the dependencies are regarded as deriving their political
existence and rights from the will and grant of Germany,
they are nevertheless being treated more and more ex-
actly as they would be if they were considered to have
inherent rights of statehood — in other words, that, al-
though the German Empire (meaning by this term Ger-
many and its dependencies, and not the State of Europe
which calls itself "the German Empire"), is in theory
a unitary organism, it is in practice a federal oi^an-
ism. Even the tropical dependencies, whose populations
are wholly without the ability to govern themselves ex-
cept, in some cases, under a tribal form, are treated as
States, and the State of Germany recognizes its right and
its duty to isolate these States economically, and to some
extent socially, from German contact and influence, and
to hold the administrators of these dependencies to the
most stringent obligation to account, as a Substituted and
Trustee Government for the people of these States, to the
State of Germany concerning their trusteeship.
Summarizing the results of this investigation of the
theory and practice of the States of continental Europe,
it appears that the conception of the dependencies of a
State as themselves States is steadily forcing its way
from the very necessity of the case, since experience
has proved that only upon this basis can dependencies
European Administration, 1 787-1902 497
be successfully administered. As the theory is yet in
process of formation, no consideration has been given to
the very important corollaries which would flow from its
acceptance, — such as, for instance, the corollaries that the
Imperial power is a trust arising out of an implied con-
tract between the Imperial State and the dependent
States, which rests upon the Legislature and the Ex-
ecutive of the Imperial State alike; and that therefore
the Federal Empire composed of a State and its depend-
encies is subject to an unwritten Constitution distinct
from the Constitution of the Imperial State.
CHAPTER XXV
BRITISH ADMINISTRATION, I780-I902
IN 1780, Burke introduced a Bill in Parliament for re-
ducing the expenses of the Civil List, which pro-
vided for the abolition of the office of Secretary of
State for the Colonies and of the Board of Commissioners
for Trade and Plantations, as unnecessary and useless. As
Great Britain had insisted, not only at the inception of
the American Revolution, but even in 1778, after the war
had been going on for three years, that its dependencies
were mere counties of the Realm, and its Parliament the
Supreme Legislature which "granted" to the depend-
encies the ** privilege " or "indulgence " of "self-govern-
ment," there was no more need for a Secretary of State
for the Colonies or for a Board of Commissioners for
Trade and Plantations, which was, in effect, an Under-
Secretarial Board, than there was for a Secretary of State
and an Under-Secretary of State for the County of Dur-
ham. The King yielded and himself abolished the two
offices attacked by Burke. By an Act passed in 1782,
the offices were formally abolished.
Burke, though insisting upon the unconditional and
unlimited power of Great Britain over the dependencies,
was a great believer, as has already been noticed, in
granting "privileges'* or "indulgences" to them. By his
influence, in 1782, the "privilege" or "indulgence" of
entire exemption from Parliamentary control was granted
to Ireland, by the repeal of the Act of 1720 "for the bet-
ter securing of the dependency of Ireland upon the Crown
of Great Britain," in which it had been declared:
498
British Administration, 1 780-1902 499
That the said Kingdom of Ireland hath been, is, and of
right ought to be subordinate unto and dependent upon the
Imperial Crown of Great Britain, as being inseparably united
and annexed thereunto; and that the King's Majesty, by and
with the advice and consent of the Lords Spiritual and Tem-
poral, and Commons of Great Britain, in Parliament assem-
bled, had, hath, and of right ought to have full power and
authority to make laws and statutes of sufficient force and
validity to bind the Kingdom and people of Ireland.
Two years later, in 1783, when the Irish objected to
cases going on appeal from the highest courts of Ireland
to the Judicial Committee of the Privy Council, the Par-
liament settled this matter by granting Ireland the
** privilege " and "indulgence " of entire exemption from
this appellate jurisdiction, in an Act which provided :
That the right claimed by the people of Ireland to be bound
only by laws enacted by his Majesty and the Parliament of that
Kingdom in all cases whatever, and to have all actions and
suits at law or in equity, which may be instituted in that King-
dom, decided by his Majesty's courts therein finally, and
without appeal from thence, shall be, and it is hereby declared
to be, established and ascertained forever, and shall at no
time hereafter be questioned or questionable.
The Irish people, instead of arguing from this action
of Parliament that Great Britain and Ireland constituted
a Federal Empire, of which Great Britain was the Sover-
eign State for which the King acted, argued that Ireland
was a State independent of Great Britain, though the
same person was King of both States. If the King of
Great Britain was merely the King of Ireland, it neces-
sarily followed that when a Regent had to be named^
Ireland might name him as well as Great Britain, and if
they could not agree, Ireland might name its own King
and become entirely independent. This was actually
500 The Administration of Dependencies
attempted in 1788. At the time the Constitution of the
United States was being framed, Ireland, released from
Parliamentary control, was in a state of anarchy and was
a menace to the peace and safety of Great Britain ; and it
was evident that the Act of 1782 had been a serious mis-
take. It seems probable that the failure of this experi-
ment had much to do with the practically unanimous
sentiment which seems to have prevailed in America in
1787 that the Northwest Territory could not safely be
exempted from the control of Congress.
In 1782, when Burke's Act was passed, there was no
regularly organized Committee of the Privy Council
for Trade and Plantations. The administration of the
British dependencies, therefore, rested with the King
and the Parliament (except where, as in the case of Ire-
land, the Parliament had voluntarily withdrawn), acting
through the Secretary of State for the Southern Depart-
ment, who then began to be recognized as the Secretary
of State for Home Affairs. Until 1786, the immediate
charge of the administration of the dependencies was
vested in a Bureau or Division of the Home Office,
known as **the Plantations Branch of the Home Office.**
The Committee of the Privy Council for Trade and
Plantations was revived in 1784, and in 1786 the busi-
ness of the Plantations Branch of the Home Office was •
transferred to this Committee.
Under this arrangement, the Committee of the Privy
Council for Trade and Plantations was, in effect, the
Secretarial Board for Imperial Affairs. The Secretary of
State for the Southern Department was also Secretary for
Imperial Affairs. There were therefore two Secretaries
of State having the same functions, acting under an
arrangement which did not expressly subordinate either
of them to the other. It was inevitable that one should
supplant the other. The Committee of the Privy Coun-
cil for Trade and Plantations, being less effective than
British Administration, 1 780-1 902 501
the single Secretary, gradually dropped into desuetude,
and by the year 1800 had practically ceased to have any
connection with the administration of the dependencies.
In 1794, it evidently being realized that the business
of the administration of the dependencies had no proper
connection with the administration of the Home Affairs
of Great Britain, the administration of the dependencies
was placed in the charge of the War Department, and
the Secretary of State for War became nominally the
Secretary of State for the Colonies.
The policy of legislative independence for Ireland,
initiated by Great Britain in 1782 during the Radical re-
action, which had resulted in nothing but anarchy for
Ireland, was brought to a close by the Union between
Great Britain and Ireland which was consummated
August 2, 1800.
By Pitt's Act, in 1791, Canada was divided into two
Provinces — Lower Canada being set apart so as to in-
clude the French settlements, and Upper Canada so
as to include the regions into which there was English
immigration. Each Province was given a Lower House
which was elective, and the form of government in each
was assimilated as nearly as possible to that of the British
Government. The French population, however, did not
wish to be assimilated, but insisted on retaining their own
habits and customs, and a bitter feeling arose between
the two populations. The French majority in Lower
Canada, unused to expressing themselves through a
popular Assembly, soon fell under the influence of social-
istic leaders.
The crisis was reached between the years 1835 and
1840. The Radicals in Lower Canada demanded a
Colonial Executive dependent for its tenure of office on
the vote of the popular branch of the Colonial Assembly.
This was, in effect, a demand that Lower Canada should
be recognized as an independent State, having no
502 The Administration of Dependencies
connection with Great Britain except by treaty. It was
substantially the same as the demand of the anti-
Imperialist party in the American Colonies just prior
to the Revolution.
Warned by its experience with the American Colonies,
and acting under the advice of Lord Durham, who was
sent out under a commission by which he was appointed
not only Governor of Lower Canada, but also "High
Commissioner for the adjustment of certain important
questions depending in the Provinces of Lower and
Upper Canada respecting the form and future govern-
ment of said Provinces," Great Britain adopted the
principle of ** responsible government" for both Upper
and Lower Canada. Lord Durham thus described the
characteristics of ** responsible government " in his Report
on the Affairs of British America^ published in 1839:
The responsibility to the Colonial Legislature of all officers
of the Government, except the Governor and his Secretary,
should be secured by every means known to the British Con-
stitution. The Governor, as the representative of the Crown,
should be instructed that he must carry on his government by
Heads of Departments in whom the Colonial Legislature shall
repose confidence; and that he must look for no support from
home in any contest with the Legislature, except on points
involving strictly Imperial interests.
I would not impair a single prerogative of the Crown; on
the contrary, I believe that the interests of the people of these
Colonies require the protection of prerogatives which have not
hitherto been exercised. But the Crown must on the other
hand submit to the necessary consequence of representative
institutions; and if it has to carry on the government in uni-
son with a representative body, it must consent to carry it on
by means of those in whom that representative body has
confidence.
British Administration, 1 780-1902 503
Perfectly aware of the value of our colonial possessions and
strongly impressed with the necessity of maintaining our con-
nection with them, I know not in what respect it can be de-
sirable that we should interfere with their internal legislation
in matters which do not affect their relations with the Mother
Country. The matters which so concern us are very few.
The constitution of the form of government, — the regulation
of foreign relations, and of trade with the Mother Country,
the other British Colonies, and foreign nations, — and the dis-
posal of the public lands, are the only points on which the
Mother Country requires a control. This control is now
sufficiently secured by the authority of the Imperial Legis-
lature; by the protection which the Colony derives from us
against foreign enemies; by the beneficial terms which our
laws secure to its trade; and by its share of the reciprocal
benefits which would be conferred by a wise system of coloni-
zation.
In accordance with Lord Durham's suggestion, Upper
and Lower Canada were united under a single legislative
Assembly, and this Assembly, on September 3, 1841,
adopted the following resolutions, which are interesting
as containing a definition of ** responsible government**
from the point of view of the population of a highly in-
telligent British dependency:
That the Head of the Executive Government being, within
the limits of his Government, the representative of the Sover-
eign, is responsible to the Imperial authority alone; but that,
nevertheless, the managen ent of our local affairs can only be
conducted by him, by and with the assistance, counsel, and
information of subordinate officers in the Province.
That in order to preserve, between the different branches
of the Provincial Parliament, that harmony which is essential
to the peace, welfare, and good government of the Province,
the chief advisers of the representative of the Sovereign, con-
stituting a Provincial Administration under him, ought to be
504 The Administration of Dependencies
men possessed of the confidence of the representatives of the
people; thus afifording a guarantee that the «irell-understood
wishes and interests of the people, which our gracious Sover-
eign has declared shall be the rule of the Provincial Govern-
ment, will, on all occasions, be faithfully represented and
advocated.
That the people of the Province have, moreover, a right to
expect from such Provincial Administration the exertion of
their best endeavors that the Imperial authority, within its
constitutional limits, shall be exercised in the manner most
consistent with their well-understood wishes and interests.
According to this statement, the purpose of " responsible
government " is to "guarantee that the well-understood
wishes and interests of the people [of the dependency]
will, on all occasions, be faithfully represented and
advocated " before the tribunal representing the Imperial
State, in order that it may make a disposition concerning
them. "The well-understood wishes and interests "of
the people of the dependency are, according to this
statement, to be regarded as "the rule of the Provincial
Government," and a denial of these wishes and interests
is to occur only as an exception and for good cause.
The "responsibility" of the Imperial State, according to
this statement, is to "the people" of the dependency
considered as an organized body capable of having and
expressing their "wishes and interests" as a distinct po-
litical unit or State. The admission, by an Imperial
State, of the principle of "responsible government" for
a dependency is therefore nothing more or less than the
recognition of the dependency as a State in a permanent
relationship to the Imperial State of such a kind that the
Imperial State renders services as a Judge and Ruler
under an implied contract — that is, under an unwritten
Constitution.
During the period from 1800 to 1841, great attention
British Administration, 1 780-1 902 505
was given to the economic problems of the administration
of dependencies, particularly by William Huskisson, who
was Secretary of State for War and the Colonies in 1827,
with the result that the statehood of the dependencies
for economic purposes was recognized by the British
Government. Mr. Egerton, in his History of British
Colonial Policy^ thus sums up the history of this period :
Amidst the confusion of particular enactments we note a
general tendency. For the theory of monopoly a new theory
has been substituted, that of reciprocity, to be ever connected
with the name of Huskisson.
Inasmuch as a State cannot perform an act of re-
ciprocity except toward another State, the acceptance
by the State of Great Britain of the theory of Huskisson
was an acceptance, to that extent, of the conception of
the British dependencies as dependent States,
With the admission of the principle of "responsible
government," as the basic principle of the political rela-
tionship between Great Bntain and its dependencies and of
** reciprocity " as the basic principle of the economic rela-
tionship, came the perception that the British Empire was
a permanent political organism — a State, federal in form,
and permanent in its nature, founded in the necessities
of human nature, and subserving a beneficent purpose.
Herman Merivale, who was Under-Secretary of State
for the Colonies for many years and a profound stu-
dent of colonial administration, in the last of his series
of lectures on "Colonization and Colonies " delivered at
Oxford University in the years 1839, 1840, and 1841,
said :
It does not follow as a necessary consequence that the at-
tainment of domestic freedom is inconsistent with a continued
dependence on the Imperial sovereignty. . . . Union
might be preserved, for any reason which theory has to show
5o6 The Administration of Dependencies
against it, long after the sense of necessary dependence is
gone. . . . The union must more and more lose the pro-
tective, and approximate'to the federative character; and the
Crown may remain, at last, in solitary supremacy, the only
common authority recognized by many different Legislatures,
by many Nations politically and socially distinct.
Lord Elgin, in 1850, while Governor-General of Canada,
expressed the conception of the British Empire as a
federal organism, existing permanently and for beneficent
objects, in a letter in which he declared :
You must renounce the habit of telling the Colonies that
the colonial is a provisional existence. You must allow them
to believe that, without severing the bonds which unite them
to Great Britain, they may attain a degree of perfection and
of social and political development, to which organized com-
munities of free men have a right to aspire.
In 1849, Lord Grey, then Secretary of State for War
and for the Colonies, revived the Committee of the Privy
Council for Trade and Plantations. This Committee had
been in existence, but it had had no concern for many
years with colonial subjects. The occasion of this re-
vival was the difficulties into which he had fallen in at-
tempting to recommend legislation relating to Australia.
It was necessary that a disposition of the matter should
be made by an expert tribunal, whose decision would
meet with acceptance. The Committee of the Privy
Council for Trade and Plantations was enlarged so as to
include several men expert in colonial administration,
and in fact adjudicated the whole subject of the relations
between Great Britain and Australia. The Bill recom-
mended by them for adoption by Parh'ament went to the
utmost extent in regarding the different colonial com-
munities as States. Though the Bill was passed and
met with the approval of the Australian Colonies, this
British Administration, 1 780-1 902 507
practice (which was in fact a substitution of a Committee
of the Privy Council for the Secretary of State for the
Colonies) was not continued, it evidently being perceived
that, though most valuable as an exceptional practice, it
would lead to conflict and confusion if applied habitually.
In 1852, the principle of "responsible government"
was applied to the Maori tribes of New Zealand, they be-
ing treated as dependent States under a ** constitutional
protectorate." The preamble of the Act of Parliament
was thus worded :
Whereas it may be expedient that the laws, customs and
usages of the Maori tribes should for the present be maintained
for the government of themselves . . . and that particular
districts should be set apart within which such laws, usages
and customs should be preserved, etc.
By the Act, power was given to the Crown to make
provision for the purposes aforesaid, **any repugnancy of
such native laws ... to the law of England . . .
notwithstanding." The Crown delegated its powers
under this statute to the Governor of New Zealand.
In 1854, a separate Secretariat for the Colonies was
established. The conception of the British Empire as a
permanent federal organism, requiring an administration
different from that of Great Britain and in which the
relations between the component States were entirely
different from the relations between Great Britain and
foreign States, was thus accepted by the British Govern-
ment. ''Responsible government" for all the depen-
dencies having an elective legislative Assembly was
thenceforth rapidly converted into the conception of
** responsible government" for all dependencies. Each
Local Government was recognized as a Government
substituted by the power of Great Britain for the Local
Government which the dependency would have formed
5o8 The Administration of Dependencies
for itself, had it been an independent State capable of
having and expressing distinct "wishes and interests.**
The universality, in the British Empire, of the principle
of ''responsible government," using this expression as
meaning "government responsible to the people of eadi
dependency," is illustrated in the administration of India.
It had been perceived by the French, during the time
of their administration in India, that the only possible
function which the representatives of a European State
in India could successfully perform was that of a Central
Government for the native States, and during the last
part of their administration they had acted on this theory
with great success, keeping in existence the native States
as far as practicable. Clive adopted this policy on his
conquest of the French in 1757, and his policy was fol-
lowed by his successors. In the Regulating Acts for
India, enacted by Parliament in 1773 and 1784, the
"Presidencies" established by the East India Company
in regions coterminous with the boundaries of native
States were recognized. In 1793, by the India Act of
that year, the direct responsibility of Great Britain to the
people and States of India was recognized by giving
the Governor-General of the Presidency (that is, the
dependent State) of Bengal limited authority over the
Governments of the two other Presidencies, Madras and
Bombay. By the Act of 1833, the Governor-General in
Council of Bengal became the Governor-General in
Council of India, vested with the "superintendence,
direction, and control of the whole civil and military
Governments of all the said territories and revenues in
I India." This Act was due very largely to the efforts
t of Thomas_B. Macaulay (afterwards Lord Macaulay)
who, during his period of office as a member of Parlia-
ment from 1830 to 1835, had made a special study of the
characteristics of India and of the needs of the States
and populations of India in the matter of government.
British Administration, 1 780-1 902 509
India thus became a Federal State under an unwritten
Constitution. The legislative powers of each Presidency
were vested in the native people of each Presidency, and
were exercised, not by a representative Assembly elected
by the people, but by a Local Government appointed by
the State of Great Britain and acting as a Substitute and
Trustee Government, following in part British principles,
and in part the unwritten and written traditions and cus-
toms of the native populations. Under this system, the
functions of the Supreme Government of India were es-
sentially dispositive. Whatever legislative powers they
possessed were powers of executive legislation. They
were fulfilling the implied contract of trust and agency
between the State of Great Britain and the people of each
Presidency.
Macaulay's work in behalf of the people of India,
while he was a member of the Council of the Governor-
General, during the years from 1835 to 1838, was based
on a recognition by him of the dispositive functions
of the Indian Government. In recommending a Penal
Code, which was afterwards prepared chiefly by him, and
which is justly famous for its simplicity and complete-
ness and for its adaptation to the situation, he announced
the theory on which it should be based as follows :
This code should not be a mere digest of existing rules and
regulations, but should comprise all the reforms which the
Commission may think desirable. It should be framed on two
great principles — the principle of suppressing crime with the
smallest amount of suffering, and the principle of ascertaining
the truth at the smallest possible cost of time and money.
By the Act of 1853, ^ body was established in India
called "the Legislative Council of India,** composed of
a Governor-General, the four members of the Executive
Council, four persons nominated by the Governor of
5IO The Administration of Dependencies
each of the four Presidencies, the Chief Justice and the
Puisne Judge of the Supreme Court of Calcutta, and
two persons chosen by the Governor-General. It was
not long before this body showed the effect of their de-
scription as a "Legislative Council." They reasoned
that if they were, in fact, a Legislative Council, their
powers were powers of legislation and not of disposition,
and that they were not obliged to execute the Constitu-
tion of the Empire or the Constitution of Great Britain,
or the will of the native inhabitants, and that their true
function was to execute their own will. They therefore
proceeded to criticise and oppose both the wishes of the
British Government and the wishes of the native popula-
tions. In 1861, Parliament put an end to this system, and
re-established a Central Government in India with dis-
tinctly dispositive powers. By the Act of 1861, the num-
ber of ordinary members of the Executive Council, which
was thenceforth called '*the Council of the Governor-Gen-
eral," was increased from four to five — one to be a barrister
of five years' standing, with the Commander-in-Chief, as
before, an extraordinary member. In addition, the Gov-
ernor-General was to nominate not less than six nor more
than twelve additional members, one half of whom were
to be persons not in the service of the Government. All
legislative acts of the Council, before becoming opera-
tive, were to receive the assent of the Governor-General
or to be reserved by him for the assent of the King.
Power was also given to the Governor-General, in cases
of emergency, to pass ordinances having the force of
laws.
By the same Act, the division of functions between
the members of the Governor-General's Council so as to
make it the Cabinet of India was legalized, and the
Local Governments of the Presidencies of India were
reorganized and made subject to the disposition of the
Governor-General in Council. By subsequent Acts,
British Administration, 1 780-1 902 511
changes have been made in the composition of the
Council of the Governor-General, and of the Local
Councils, but there has never been any departure from
the principle established by the Act of 1861, which is
that the instrumentalities of government in India are to
be so constituted as to most justly and expertly adjudi-
cate and execute the unwritten Constitution of the British
Empire in India, which is based in part upon the Con-
stitution of Great Britain and in part upon the traditions
and customs of the respective natural divisions of the
lands and populations of India, regarded as States.
In 1858, the instrumentalities of the British Govern-
ment in Great Britain were remodelled for the express
purpose of accomplishing the same result — namely, the
proper and orderly adjudication and execution of the
Constitution of the British Empire, as applied to India.
By an Act passed in that year, all governmental powers
were taken from the East India Company and vested in
the Crown, which was to act through a Secretary of
State for India, for whose advice there was provided a
Council for India. Though the Secretary of State for
India was required to act on his own responsibility in
advising the King, he was obliged to consult the Council
for India before acting at all and before advising the
King.
Sir George Chesney says of this Council, in his Indian
Polity :
The necessity for maintaining a permanent Council or body
of some sort, unconnected with the ebb and flow of party
politics, will be universally recognized, and the constitution
of this body will equally be considered a matter of importance.
The number of Councillors was fixed at fifteen in the first
instance, in order to admit of its being fairly representative of
knowledge and experience gained in the different parts of In-
dia and of the different interests to be dealt with; and making
512 The Administration of Dependencies
allowance for the proportion of dull men who will always
find their way into such a body, it is certainly not too large for
the purpose. Whether the Council, as established, is turned
to the best account, will depend on the procedure laid down
for its working. One of the most important points to be pro-
vided for is the protection of the people of India, the tax-
payers, from the infliction of improper and unfair charges.
This was, no doubt, the object aimed at in the provision of
the Act of 1858, that "no charge should be placed upon the
revenues of India without the sanction of a majority of the
Council."
Speaking of the relation of the Council to the Secre-
tary of State for India, he says:
The Secretary of State should undoubtedly have power to
override his Council. It could not be allowed that the policy
of the British Government should be liable to obstruction by
any other body than the Parliament which places it in power;
but the interests of India demand that the Cabinet should at
least be placed in possession of the opinions of those who are
best qualified to judge of the effect of any measures proposed
which will involve a financial burden on India.
He admits that since it must be recognized that "in
dealing with measures involving military operations,
secrecy is a necessary condition, and that the mainte-
nance of secrecy is not compatible with the deliberation
of a large body," the Secretary of State for India must be
allowed to control such operations without the necessity
of advising with the whole Council, and he approves the
general principle of the Act of 1858 which allowed a part
of the Council to act as a Secret Committee in cases
requiring secrecy.
The question has been agitated from time to time of
replacing the existing Government of India, which is
essentially an executive Government, by a Government
British Administration, 1780- 1902 5^3
which should have strictly legislative powers. It has even
been seriously proposed that the seat of such a legislative
Government should be in Great Britain. Speaking of
this subject, Sir George Chesney says:
Hitherto the India Office, recognizing that its proper func-
tion is that of a court of review, and that India can be properly
governed only by the Government in that country, has as a rule
laudably abstained from direct interference in administrative
details. . . . The Secretary of State for the time being
has usually been scrupulous in maintaining this dividing line
of the respective functions of the two authorities. There have
indeed been exceptions to the rule, as in the case of the re-
organization of the army after the Mutiny, when a quite im-
practical scheme was sent forth from the India Office cut and
dried to be carried out in India. These and similar attempts
to transfer the initiation of affairs from India to England
have served to bring more clearly to light the soundness of the
policy of abstention.
The maintenance of this principle, that India must be ad-
ministered by the Government in India — with the development
lately set in motion of local institutions, the advancement of
the people of that country to a larger share in its administra-
tion through the expansion of the Legislative Councils, and
their extended employment in all branches of the public ser-
vice— becomes now more than ever a vital necessity, and
makes it superfluous to discuss the proposals put forward from
time to time for the replacement of the existing Council of
India by a larger body. Anything in the shape of an Assembly
debating in public is, from the nature of the case, out Qf the
range of serious consideration. Indians could not be brought
to this country to serve on it, at any rate in sufficient numbers
to be representative of the people of India ; and the idea that per-
sons so placed, whether Englishmen or Indians, should be in
a position to advance opinions, still more to carry resolutions,
for the result of which they would not be wholly responsible,
33
5H The Administration of Dependencies
will not be entertained by any one who has the most elementar)'
acquaintance with the conditions of that country or with repre-
sentative institutions. If, in the dim and distant future, the
time should ever arrive when a Parliament of any sort is pos-
sible for India, it must be set up in that country and not in
this.
Sir John R. Seeley, in his Expansion of England^
speaking of the British Empire in India, says :
We call this Empire a conquest, in order to mark the fact
that it was not acquired in any degree by settlement or coloni-
zation, but by a series of wars ending in cessions of territory
by the native Powers to the East India Company. But let us
be careful how we take for granted that it is a conquest in any
more precise sense of the word.
India therefore may be called a possession of England in a
sense which is not applicable to the Colonies. Nevertheless
the word conquest, which, like most of the vocabulary of war,
has come down to us from primitive barbaric times, may easily
be misunderstood. We may still ask in what sense England
can be said to possess India. What we possess we devote in
some manner to our own enjoyment. If I own land, I either
take the profits of the harvest, or, if I let the land to a farmer,
I get rent from it. And in primitive times the conquest of a
country was usually followed by possession in some literal
sense. Sometimes the conquerors actually became landlords
of the conquered territory or of part of it, as in that conquest
of Palestine which we read of in the Book of Joshua, or in
those Roman conquests where a certain extent of confiscated
land was often granted out to a number of Roman citizens.
Now assuredly India is not a conquered country in this sense.
England has not seized lands in India, and after displacing
the native proprietors assigned them to Englishmen.
There is another sense in which we may conceive the con-
dition of a conquered country. We may think of it as tribu-
British Administration, 1 780-1902 5^5
tary or paying tribute. . . . Taxes are raised of course
in India, as taxes are raised in England, but India is no more
tributary than England itself. The money drawn from India
is spent upon the government of India, and no money is levied
beyond what is supposed to be necessary for this purpose.
• ••■••••
The truth is that, though the present relation between India
and England was historically created by war, yet England
does not, at least openly, claim any rights over India in virtue
of this fact. In the Queen's Proclamation of ist November,
1858, by which the open assumption of the government by the
Queen was announced, occur the express words, **We hold
ourselves bound to the natives of our Indian territories by the
same obligations of duty which bind us to all our other sub-
jects." That is, conquest confers no peculiar rights, or India
is not for practical purposes a conquered country.
What is unprecedented in the relation of England to India
is the attempt to rule, not merely by experts, but by a system
founded on public opinion, a population not merely distant,
but wholly alien, wholly unlike in ways of thinking, to the
sovereign public. Public opinion is necessarily guided by a
few large, plain, simple ideas. When the great interests of
the country are plain, and the great maxims of its government
unmistakable, it may be able to judge securely even in ques-
tions of vast magnitude. But public opinion is liable to be
bewildered when it is called on to enter into subtleties, draw
nice distinctions, apply one set of principles here and another
set there. Such bewilderment our Indian Empire produces..
It is so different in kind both from England itself and from
the Colonial Empire that it requires wholly different principles
of policy. And therefore public opinion does not know what
to make of it, but looks with blank indignation and despair
upon a Government which seems utterly un-English, which is
bureaucratic and in the hands of a ruling race, which rests
mainly on military force, which raises its revenue, not in the
European fashion, but by monopolies of salt and opium, and
5i6 The Administration of Dependencies
by taking the place of a universal landlord, and in a hundred
other ways departs from the traditions of England.
If we combine all the facts I have hitherto adduced in order
to form a conception of our Indian Empire, the result is very
singular. An Empire similar to that of Rome, in which we
hold the position not merely of a ruling but of an educating
and civilizing race; this Empire held at arm's length, paying
no tribute to us, yet costing nothing except through the burden
it imposes on our foreign policy, and neither modifying nor
perceptibly influencing our busy domestic politics; this Em-
pire nevertheless held firmly and with a grasp which does not
slacken but visibly tightens; the union of England and India,
ill-assorted and unnatural as it might seem to be, nevertheless
growing closer and closer with great rapidity under the in-
fluence of the modern conditions of the world, which seem
favorable to vast political unions; — all this makes up the
strangest, most curious, and perhaps most instructive chapter
of English history. It has been made the subject of much
empty boasting, while those who have looked deeper have often
been disposed to regard the whole enterprise with despondency,
as a kind of romantic adventure which can lead to nothing per-
manent. But, as time passes, it rather appears that we are in
the hands of a Providence which is greater than all statesman-
ship, that this fabric so blindly piled up has a chance of be-
coming a part of the permanent edifice of civilization, and that
the Indian achievement of England as it is the strangest, may
after all turn out to be the greatest, of all her achievements.
The government of India has been called despotic and
paternal, but it is not. Despotism implies an imposition
of the mere will of one person upon another. Paternal-
ism is the same thing except that the person who imposes
his will on the other is assumed to have a benevolent
purpose in so doing. The reason why the English gov-
ernment of India has been successful is that it has been,
on the whole, neither despotic nor paternal, but expert.
British Administration, 1780- 1902 517
The distinction between expert government and des-
potic or paternal government cannot be insisted upon too
strongly. Expert government is inconceivable except
as the outgrowth of republicanism and democracy. It
implies that the depositaries of power are the agents of
all the people of the community, and hence responsible
to the people in the last resort ; and that they stand in
the same relation to the people as the physician to his
patient or the lawyer to his client. The patient may
refuse to follow the law of health ascertained and declared
to him by his physician, and the client may refuse to
follow the law of human commerce and intercourse ascer-
tained and declared to him by his lawyer, but the more
the mind of the individual is enlightened, the more will-
ing and anxious is he to obtain expert advice and to
follow it. Expert government has its final sanction,
therefore, in the free will of the governed.
The individual in India has never been made to feel
that he was merely a thing or that he was a mere lump
of human clay which was either to be moulded into an
Englishman or to be destroyed. His traditions, his
wishes, and his ideals have been respected to the utmost
extent consistent with the common welfare. The advice
of the enlightened mind of India has been sought and
given its full weight. The people of India have partici-
pated in their own government — not by popular elections
of local officials, but by a method entirely dignified and
such as the most highly civilized community might prop-
erly adopt. The government of India has proceeded
upon the recognition of and a respect for the natural
rights of men — even the natural rights of communities
to distinct statehood. Districts and provinces are
organized with reference to natural conditions, and the
respective districts and provinces are given a separate
political personality as far as it is possible consistently
with the general welfare. Government by mere will exists
5i8 The Administration of Dependencies
nowhere where British rule prevafls. Govcnunent pre-
ceded by an investigation of rights and duties and by a de-
cision based on this investigation exists wherever British
rule prevails. The duty of the Imperial Government to re-
frain from acting is recognized as being equally important
with its duty to act, and when action is taken, it is not
allowed to go beyond the necessity of the case. The
British power in India is uniformly recog^nized as being
a power of disposition — not a power of legislation, and
the Executive is conclusively bound by the judgments
of the courts. It is a reign of law, not a reign of wilL
The system of government which now prevails in India
is plainly a development of the general conception of the
Empire as a political organism composed of States in a
relationship of federal union under an unwritten Consti-
tution. It is, in fact, "responsible government." The
responsibility of the Governments in India appointed by
Great Britain is not, it is true, to the local representative
Assemblies, but to the people of the States of India, —
that is, to the States of India.
The British Empire of the present day is federal in
practice even when it is examined from the standpoint
of its workings in those dependencies sparsely inhabited
or inhabited by mixed or barbarous races, in which any
degree of popular government is yet impossible, and
which are called Crown Colonies or Constitutional Pro-
tectorates. Even in these dependencies, administrative
districts are formed with the view of maintaining all
proper distinctions between separate communities grow-
ing out of diversity of race, tradition, and language, and
the British Administrators recognize and enforce as far
as possible the natural rights of men and consult the
enlijjhtened public will of the community, so far as any
such exists.
In the working of the British Empire since it has be-
come a federal organism in fact, two distinct tendencies
British Administration, 1 780-1902 5^9
are noticeable : first, a tendency on the part of the de-
pendencies to regard federal dependence too much in the
light of independence; and second, a tendency in Great
Britain, either to admit that federal dependence and in-
dependence are one and the same thing, or to counteract
the tendency of the dependencies to regard themselves
as independent by converting the British Federal Empire
into a British Federal State under the control of an elec-
tive body, composed of representatives both of Great
Britain and its dependencies.
The first tendency was most observable during the
period from i86i to 1885. Mr, Egerton calls this period
**the period of the zenith and decline of the laissez-aller
principles."
Sir P. Wodehouse, the Governor of the Cape Colony,
in his speech at the opening of the Cape Parliament in
1870, said:
People in England, knowing little of the Colonies and to
whom their proper position is not brought home, are fascinated
by the notion of extending British institutions. . . . They
do not perceive that the very principle of responsibility is op-
posed to the existence of the Colony, . . . that the day
must come for a collision, that . . . the issues [may] be
delayed, but, sooner or later, it is inevitable; that this form
is suitable only to communities who desire or look forward to
a severance at no distant day from the Mother Country,
whether by transfer to another power or by the establishment
of an independent State.
Lord Blachford, who, as Sir F. Rogers, was Permanent
Under-Secretary of State for the Colonies from i860 to
1 87 1, wrote, in 1885:
I have always believed, — and the belief has so confirmed
and consolidated itself that I can hardly realize the possibility
of any one seriously thinking the contrary, — that the destiny
520 The Administration of Dependencies
of our Colonies is independence; and that, in this point of
view, the function of the Colonial Office is to secure that our
connection, while it lasts, shall be as profitable to both parties,
and our separation, when it comes, as amicable, as possible.
The period from 1886 to the present day, which Mr.
Egerton calls "the period of Greater Britain," was marked,
at its beginning, by a too violent reaction against the
laissez-aller doctrines. It was at this period that the
doctrine which became known as ** Imperial Federation"
took such strong possession of a large part of the think-
ing population of Great Britain. The purpose of this
movement was to convert the British Empire into a
Federal State under a central representative Assembly
sitting in England, composed of delegates both from
Great Britain and its dependencies. The advocates of
this theory seem to have admitted that it was wholly in-
applicable to India. Perhaps there would have been a
substantial agreement among them that the plan was
applicable only to dependencies having elected repre-
sentative Assemblies.
The British Government, however, seems never to
have been so much affected by these doctrines as it was
by the laissez-aller doctrines. Independence for the
Colonies was regarded as a practicable proposition, but
the conversion of the British Empire into a Federal State
was regarded as both impracticable in itself and as wholly
out of the question because it involved the abdication of
Great Britain, — that is, the abdication of England, — from
its proud position as the Disposer of the affairs of the
British Empire. At the Colonial Conference held in
London in 1887, Lord Salisbury, speaking of the
doctrines of the Imperial-Federationist faction, thus
rebuked their lack of political sagacity :
These are grand aspirations. . . They are doubtlessly
hazy, but they are the nebulous matter that, in the course of
British Administration, 1 780-1902 521
ages, — in much less than ages, — will cool down and condense
into material from which many practical and business-like
resolutions may very likely come.
The opinion of the British Government concerning the
impracticability of Imperial Federation was ultimately
adopted by the conservative thought of England. Dr.
Edward A. Freeman, in his essay on The Bases of Na-
tional Unity y published in 1892, to which reference has
heretofore been made, gave voice to the Imperial spirit
of the English State which makes ** Imperial Federation,**
as a substitute for the British Empire, forever impossible
except as a matter of necessity, when he said :
I am no lover of "empire"; I am not anxious for my
country to exercise lordship over other lands, English-speak-
ing or otherwise. But I will not, so far as one man can hinder
it, have my country ruled over by any other power, even by a
power in which my country itself has a voice. If it is pro-
posed that the great and historic Assembly which King Edward
called into existence in 1295 shall keep its six hundredth anni-
versary by sinking to the level of the Legislature of a Canton
of a Britannic Confederation, then I shall be driven, however
much against the grain, to turn Jingo and sing "Rule,
Britannia."
The trend of the conservative thought of England for
the past twenty-five years has undoubtedly been toward
the formation of an Imperial Council in England, com-
posed of experts, which shall be advisory to the British
Crown and Parliament, when acting as the representative
of Great Britain as the Imperial State.
Mr. Charles Walter Eddy, writing in 1874 on the sub-
ject, "What are the best means of drawing together the
interests of the United Kingdom and the Colonies, and
of strengthening the bonds of union? " (his paper on this
522 The Administration of Dependencies
subject being read, shortly after his death in 1874, before
the Royal Colonial Institute of London), said :
Mr. W. Jardine Smith, of Melbourne, and other Colonial
writers, have advocated the formation of a Supreme Council
of the Empire, for the consideration of the external affairs,
and others in which the whole Empire is interested ; and this
project of a Council, rather than of a United Parliament, is
clearly the favorite idea of colonists. It is one which is
greatly favored and facilitated by the appointment of Agents-
General in London to represent all the larger Colonies, and
these are in some instances surrounded by a court of advisers
similar to the Indian Council. This plan is evidently taking
root, and expanding and growing with the healthy growth of
all English institutions which experience shows to be congenial
and useful.
In furtherance of this project of a Supreme Council, I some
time ago submitted to an assembly of colonists a scheme which
was received with a certain amount of favor, though it was
acknowledged to be hopeless to put it before the Government
of the day. Of this I will, with your leave, in conclusion, re-
produce the heads. It is one that has received the approval
of so profound a student of constitutional history as Mr.
Froude, who wrote on it as follows: **The machinery of the
Privy Council is, as you say, made to the hand for a judicious
reconstruction of our Colonial relations.*'
My proposal was not to attempt to create de novo a power
unknown to the Constitution that we all revere, but still
planting our footsteps on her ancient and well trodden paths,
to take advantage of the machinery provided by that venerable
institution, ** the Queen's most honorable Privy Council," by
reviving in a manner suited to the present and prospective
exigencies of our Colonies that department of it which was
formed under the name of the Committee of Privy Council
for Trade and Foreign Plantations, and so constituting a
branch of the Council for advice on the general concerns of
the whole Empire, in like manner as the Judicial Committee
of the Council is constituted as the Court of Final Appeal on
British Administration, 1 780-1902 523
legal matters. I showed that the Cabinet, whose only legal
status is that it consists only of Privy Councillors, and [which]
is, in fact, a committee of that body, may be regarded as the
Standing Committee for general purposes, and is supposed to
represent the prevailing public opinion of the Kingdom for the
time being; that it is necessarily in harmony with the House
of Commons, but with that only; and that an analogous Com-
mittee for counsel and advice, in which the Colonies as well
as the Mother Country should be represented, would apparently
provide the whole machinery necessary for the government of
the Empire.
The sphere of this Committee would be confined to advice
on a few simple but grand subjects, — peace, war, diplomacy,
the marshalling of the forces in time of war, the proper quota
or contingent of forces to be furnished by each Colony for Im-
perial purposes, and the distribution of the Imperial garrisons
and ships.
Holding as I do that a legislative union of the Empire is at
present impossible, yet I believe that a Federal Union is quite
practicable, and may be accomplished without difficulty by
the formation of a Federal Council such as I have indicated.
Mr. George R. Parkin, in his book on Imperial Federa-
Hotly published in 1892, while advocating the conversion
of Great Britain and its self-governing Colonies into a
Federal State under an elected representative Parlia-
ment, supreme over the Parliament of Great Britain and
over the Parliaments of the respective self-governing
Colonies, frankly confessed that that idea was not ac-
ceptable to the leading statesmen of Great Britain, and
gave the following impartial summary of the various
propositions advanced for the establishment of an Im-
perial Council, which should be advisory to the Crown
and Parliament when acting as the Imperial Executive
and the Imperial Legislature. He said :
524 The Administration of Dependencies
I have found that practical statesmen throughout the Em-
pire, even those most devoted to the cause of national unit}',
while recognizing that the difficulties constantly tend to dimin-
ish, look upon the immediate realization of this ideal as im-
practicable, or as involving too great a political eflfort, too
sweeping a change in the existing machinery of national gov-
ernment. They turn themselves to the consideration of
measures which will by gradual steps and a process of consti-
tutional growth lead up to the desired end.
Prominent among such measures must be placed the pro-
posal to summon periodical conferences of duly qualified
representatives of the great Colonies to consult with the Home
Government and with each other on all questions of common
concern. The public recognition of the right of consultation,
the formal summoning of such conferences by the head of the
State, would of itself be a signal proof to the outside world of
the reality of national unity, a decisive step towards its com-
plete attainment. By bringing the leading statesmen of the
Colonies from time to time into immediate contact with those
of the Mother-Land, the opportunity would be furnished for
that personal understanding which becomes more and more
necessary in the conduct of politics and diplomacy. In pro-
portion as dignity is given to these conferences, and as their
decisions are carried into effect, their influence on the policy
of the Empire would increase till, it is believed, they would
either themselves develop into an adequate Federal Council,
or would have gained an authority and experience entitling
them to indicate the lines on which such a Council could be
created.
But conferences are occasional, and it would still be neces-
sary to provide some means of more continuous contact be-
tween the thought of the Governments of the Colonies and
that of the Mother Land. On this point of an adequate con-
stitutional nexus we have many important suggestions, to a
few of which reference should be made.
Sir Frederick Pollock, in an article contributed to an
British Administration, 1 780-1 902 525
English journal in March, 1891, says: "Is there not any way,
short of a gigantic constitutional experiment, of providing a
visible symbol and rallying-point for the feeling of Imperial
patriotism which has so notably increased within the last ten
years ? I think there is. One part of our Constitution re-
tains, not only in form, but in fact, the vigor of perpetual
youth, and is capable of indefinite new growth as occasion
may require, without doing violence to established usage. I
mean the Privy Council. From the Privy Council there have
sprung within modem times the Board of Trade, the Judicial
Committee, the Education Department, the Universities Com-
mittee, and virtually, though not quite formally, the Local
Government Board, and the several commissions now merged
in the Agricultural Board. Why should there not be a Co-
lonial and Imperial Committee of the Privy Council, on which
the interests of the various parts of the Empire might be repre-
sented without the disturbance of any existing institution what-
ever, and whose functions might safely be left, to a large
extent, to be moulded and defined by experience ? . . .
It might be summoned to confer with the Cabinet, the Foreign
or Colonial Minister, the Admiralty, or the War Office, at the
discretion of the Prime Minister or of the Department con-
cerned ; and its proceedings would be confidential. . . .
It is hardly needful to mention the Agents-General of the
self-governing Colonies as the kind of persons who should be
members of the Committee now suggested, being, of course,
first made Privy Councillors. ... I believe that such a
Committee might give us something better than a written Con-
stitution for the British Empire; it might become the centre
of an unwritten one."
Lord Thring, looking at the question as a constitutional ex-
pert, has stated in his opinion that the best way in which the
Colonies could at present directly intervene in the general
policy of the Empire would be by elevating the position of
Agents-General to one akin to that of a Minister of a foreign
State, and by giving them in addition, as members of the
Privy Council, the right of constitutional access to the British
Government. This, he thinks, would satisfy the immediate
526 The Administration of Dependencies
necessities of the case, and would pave the way for the fuller
representation which must come with the fuller acceptance of
national responsibility.
Nothing can more fully show the change that has come over
the public mind than the fact that proposals such as these are
now made by constitutional authorities and responsible public
men. It illustrates a complete reversal of the policy which
was assumed without question by the statesmen of the last
generation. The discussion has become one not of the prin-
cipl^e of unity, but of ways and means to arrive at the most
satisfactory constitutional nexus between the Mother Land
and her offshoots.
Sir Charles Dilke, in the second edition of his Prob-
lems of Greater Britairiy published in 1890, disap-
proved the proposition to convert the Agents-General of
the self-governing Colonies into an Imperial Council and
made the following pertinent suggestion concerning the
authority which such a Council would have as compared
with an Imperial Council composed of English Privy
Councillors:
A Colony may be disinclined to allow the Mother Country
to declare that a thing cannot be done on account of Imperial
interests or Imperial treaties, but each Colony would admit the
validity of such a declaration from the Mother Country more
readily than she would tolerate interference from the repre-
sentatives of other Colonies. At the same time, while it is
difficult to make a Council of the Agents-General, there is no
reason why we should not give them a nominal position which
would correspond in dignity with the services that they already
render. They are, in fact, taken individually, among the
most trusted of the councillors of the Empire, and those who
have held for some years the position, and who have had the
confidence of successive Governments, might well be placed
formally in the Imperial Privy Council.
Lord Brassey, in a speech delivered at Leeds on March
British Administration, 1 780-1902 527
13, 1891, which IS reprinted in h\s Papers and Addresses
on Imperial Federation and Colonisation, said :
The appointment of a Colonial Council to advise with the
Secretary of State for the Colonies, as the Indian Council
advises with the Secretary of State for India, is a more limited
proposal [than that for Imperial Federation], and for this the
time is near at hand, if it has not already come. As an ex-
ample of what it seems practicable to do, I might refer to the
recent Presidential decree under which a Colonial Council has
been created in France, with provision for the representation
of the Colonies, in association with other members possessing
special knowledge and qualifications.
Hon. Joseph Chamberlain, the present Secretary of State
for the Colonies, in a speech to the Premiers of the self-
governing Colonies, delivered at the time of the second
Queen's Jubilee in 1897, advocated the establishment of
an Imperial Council advisory to the British Government
in which the self*governing Colonies should be repre-
sented. His words were:
I feel that there is a real necessity for some better machinery
of consultation between the self-governing Colonies and the
Mother Country, and it has sometimes struck* me — I offer it
now merely as a personal suggestion — that it might be feasible
to create a Great Council of the Empire to which the Colonies
would send representative Plenipotentiaries, — not mere dele-
gates who were unable to speak in their name without further
reference to their respective Governments, but persons who
by their position in the Colonies, by their representative char-
acter, and by their close touch with Colonial feeling, would
be able, upon all subjects submitted to them, to give really
effective and valuable advice. . . .
To a Council of this kind would be committed, in the first
instance, the discussion of all minor subjects of common
interest, and their opinion would be taken and would weigh
528 The Administration of Dependencies
most materially in the balance before any decision were come
to either by this country or by the Legislatures of the several
Colonies in regard to such matters.
• ••••• ■ •
Now, gentlemen, in connection with this subject we have
already made a small advance, upon which I congratulate
myself, since it was accomplished during my term of office,
though it was prepared by my predecessors; and it may have
in the future important results. The Judicial Committee of
the Privy Council is the great Judicial Court of Appeals of
the Empire. It is the nearest approach, the closest analogy,
to the Supreme Court of the United States. It is a body of
almost universal and world-wide reputation and authority,
and it is our desire naturally, in pursuit of the ideas which I
am venturing to put before you, to increase its authority, if
that be possible, and to give it a more representative character,
and with that view we have most gladly secured the appoint-
ment, as Privy Councillors, of distinguished Judges from the
courts of Canada, of Australia, and of South Africa, and they
now will take their seats on equal terms with the other mem-
bers of the Judicial Committee.
The magnitude and importance of the great States of
Canada and Australia make it necessary for English
statesmen, when speaking of such an Imperial Council,
to speak of it as if it were to be a representative Assembly.
It seems, however, that such a representative Assembly
would be opposed to the true character of a Federal Em-
pire, unless it shall prove possible to form a Federal
Empire under a written Constitution. So long as the
Constitution of the Federal Empire is unwritten (and an
unwritten Constitution seems at present necessary in a
Federal Empire), the function of the Imperial Council
would be to represent the Imperial State in the fulfilment
of its dispositive functions. If the Member-States were
to be represented in this Imperial Council, the Imperial
State would be relieved to this extent from its Imperial
British Administration, 1 780-1902 529
obligations, and division of responsibility would inevitably
lead to a weakening of its authority. The Agents of the
dependencies should come before the Imperial Council
as the Agents for independent States come before an
International Tribunal. They should come as a matter
of choice and as a matter of right, but they should come
to present the case at issue and not to decide it. When
the decisions of the Imperial Council cease to command
respect and to be followed implicitly by the States whose
rights are adjudicated by it, the Federal Empire must be
replaced by a Federal State under a Central Legislature
having supreme power within a sphere carefully defined
by a written Constitution. An Imperial Council which
should be in part an Interstate Tribunal and in part an
Imperial Parliament is perhaps possible, but whether
it would be successful in its operation is exceedingly
doubtful. Instead of decreasing friction and jealousies
between the different parts of the Empire, it seems that
it would be likely to increase them. Dispositive and
legislative functions are opposed to each other in the
nature of things, and experience seems to prove that a
representative Assembly can habitually exercise only the
power of legislation.
It seems, therefore, that the present tendency of
thought in England is toward the solution of the prob-
lems growing out of the relationship between Great
Britain and those of its dependencies which have the
highest degree of acknowledged statehood, through the
instrumentality of an Imperial Council, the function of
which it shall be to adjudicate the political rights of
Great Britain and these dependencies, and the civil rights
of their inhabitants as against the Empire, and to assist
the King and the Parliament, acting as the Imperial
Executive and Legislature, in making all needful rules
and regulations and in taking all necessary measures to
effectuate the disposition of the affairs of the Empire.
34
530 The Administration of Dependencies
The Imperial Council is to be neither co-ordinate with
nor subordinate to the Secretary of State for the Colo-
nies nor advisory to him, since an investiture of such a
Committee with co-ordinate power would lead to conflict
and paralysis of both, and investiture with subordinate
or advisory power would have the effect to weaken its
prestige as an Imperial Council. It is apparently to be
an Interstate Tribunal for superintending the Secretary
of State for the Colonies by reviewing his adjudications
upon the application of persons interested. It is to be
the ultimate adviser of the Crown and Parliament when
acting as the Imperial Executive and Legislature.
The great problem of the British Empire at the present
time is to discover some just basis upon which self-gov-
erning colonies, so called, — that is, colonies whose state-
hood has been definitely recognized, — may contribute
to the expense of the Imperial defence and welfare.
Neither the Declaratory Act of 1766, under which
Great Britain claimed the right to legislate, by Acts
of its Parliament, according to its mere will, so as to
bind the people of all the dependencies, whether self-
governing or not, **in all cases whatsoever," nor the
Act of 1778, by which it was declared that "from and
after the passage of this Act the King and Parliament
of Great Britain will not impose any duty, tax, or assess-
ment whatsoever, payable in any of his Majesty's Colo-
nies, Provinces and Plantations, in North America or
the West Indies, except only such duties as it^^may be
expedient to impose for the regulation of commerce " has
ever been repealed ; and these statutes have stood from
that day to this as a barrier to prevent Great Britain from
obtaining, in any manner, any contribution from any
self-governing Colony toward the expense of the Imperial
defence and welfare. In the second edition of Alpheus
Todd's Parliamentary Government in the British Colonies^
published in 1894, it is said :
British Administration, 1 780-1902 531
The Declaratory Statute of 1766, with the proviso agreed
to in 1778, that it shall not be construed to sanction taxation
for revenue purposes, is still to be regarded as embodying the
constitutional assertion of the supreme authority which is
exercisable by the Imperial Parliament over all the Queen's
dominions, notwithstanding that they may be in possess-
ion of Local Legislatures with powers for local self-govern-
ment.
So long as these statutes remain, every British depen-
dency— even the Dominion of Canada and the Common-
wealth of Australia — is, theoretically, on no higher grade
than a county or parish of England under exemption from
payment of taxes for the support of the State Govern-
ment of Great Britain. Theoretically the power of Great
Britain over Canada and Australia is unconditional and
unlimited except in the matter of taxation, and it is due
only to its grace and favor that it does not reduce both
these enormous States to a condition of absolute sub-
jection. Under such a theory, every dependency must,
out of self-respect, refuse to contribute to support the
power of the dominant State over them.
The power which Great Britain has actually exercised
in the British Empire for more than half a century has
been a power of disposition, and not a power of legisla-
tion ; yet rather than admit this to be the fact, the British
Government to-day professes itself to be in favor of a
union, at some future time, between Great Britain and its
self-governing Colonies, in which necessarily England
will sink to a level with all the rest the of members of
the Union, and all the affairs of the Federal State thus-
formed will be managed by a common Parliament. Only
in this way does even Mr. Chamberlain see any hope of
obtaining any contribution towards the expense of the
Imperial defence and welfare. In the speech from which
the above extract is taken he said :
532 The Administration of Dependencies
It may be that the time has come, and if not I believe it
will come, when the Colonies will desire to substitute for the
slight relationship which at present exists a true partnership,
and in that case they will want their share in the management
of the Empire which we like to think is as much theirs as it is
ours. But, of course, with the privilege of management and
control will also come the obligation and the responsibility.
There will come some form of contribution toward the expense
for objects which we shall have in common.
The reason for the insistence upon the theory that the
power of Great Britain over its dependencies is the power
of legislation is, undoubtedly, that the British Govern-
ment fears, as it has always feared, that an admission
that it was not would involve an admission that the
British Parliament had no power in the Empire. If,
however, the British Empire were recognized as a Federal
Empire, this would necessarily imply that the State of
Great Britain was the Protector and Disposer of the Em-
pire, and that it might act through any instrumentality
of its Government that it saw fit, and hence through the
Parliament. While it is undoubtedly true that a great
body like the British Parliament, in which the Lower
House is composed of the elected representatives of the
people of Great Britain, is, by its nature, unfitted for the
steady and constant adjudication of the delicate questions
which arise in the course of the relation between Great
Britain and its dependencies, there exists, on occasions,
the necessity for submitting certain great questions in
the administration of the Empire to a tribunal for final
settlement; and on such occasions of emergency the
British Parliament and the people of Great Britain must
undoubtedly settle the question and, if necessary, support
their decision by force and arms.
Admiral Sir John Colomb in his article entitled **A
Survey of Existing Conditions," printed in the volume
British Administration, 1 780-1 902 533
of essays entitled Britannic Confederation^ to which refer-
ence has already been made, said :
Nominally the Parliament of the United Kingdom, as well
as the Crown, retains supreme authority over the Parliaments
of self-governing Colonies. Practically, the power of Parlia-
ment is a reserve force, to be called out of abeyance only in
great emergencies.
Lord Chancellor Norton (formerly Baron Adderley), in
an article entitled **How Not to Retain the Colonies,"
in the Nineteenth Century for July, 1879, said:
There is no dispute as to the entire control which all self-
governing British Colonial communities have over matters of
their own internal and local concern. The Imperial Parlia-
ment would never think of interfering in exclusively Colonial
legislation, nor could the Sovereign constitutionally withhold
the royal assent from responsible Ministers possessing the con-
fidence of the Parliament passing such measures.
The legislative authority of the Imperial Parliament is in
theory transcendent, and extends over Colonies and all do-
minions of the Sovereign; but in Colonies under government
responsible to their own representative Legislatures, it is prac-
tically never directly exerted at all. If it were, it would
reduce constitutional government, recognized and established
in a Colony, to a fiction, sham, and delusion, fraught with
mischief alike to the bastard Colony, and to the Mother
Country so degrading herself abroad. . . . There are,
however, subjects of legislation which cannot be considered
of exclusive interest to any Colony, affecting the interests of
the whole Empire; or based on universal principles, which
may be looked on as a sort of common law or even jus gentium;
or comprised within great Imperial statutes and decisions,
which would be violated by contrary legislation in the Colony.
In the second edition of Alpheus Todd's Parliamentary
Government in the British Colonies, it is said :
534 The Administration of Dependencies
The Colonial possessions of the British Crown, howsoever
acquired and whatever may be their political constitution,
are subject at all periods of their existence to the legislative
control of the Imperial Parliament. But in practice, especially
in the case of Colonies enjoying representative institutions and
responsible government, the Mother Country, in deference to
the principle of self-government, has conceded the largest
possible measure of local independence, and practically exerts
its supreme authority only in cases of necessity, or when Im-
perial interests are at stake.
If the British Empire were to be formally recognized
by the British Government as a Federal Empire, and the
power of the State of Great Britain hence recognized as
a power of disposition, the present position of the British
Parliament in the Empire would not be altered, and the
actual administration of the affairs of the Empire would
be changed only in the single respect that the State of
Great Britain could then claim the right to adjudicate,
by an expert tribunal, along with all other questions, the
amount and manner of the contributions of the depend-
encies to the Imperial defence and welfare, and the de-
pendencies could with dignity and propriety contribute
according to such dispositions.
Nothing stands in the way of such a recognition except
two statutes repudiated by the United States of America,
when they were Colonies of Great Britain, as violations
of the Constitution of the British Empire.
There is evident, in the most recent thought in Eng-
land, a tendency to renounce the old theory of the un-
conditional and unlimited power of Great Britain over
its dependencies, and to substitute for it the theory em-
bodied in the American Constitution, that the Imperial
power is conditional and limited and essentially a trust or
agency to be performed by the Imperial State for the
benefit of its dependent States. Mr. Spencer Wilkinson
British Administration, 1 780-1 902 535
(the collaborator of Sir Charles Dilke in their recent work
on Imperial Defence) says, in his book entitled The Na-
tions Awakeningy pifSlished in 1896, which Sir Charles
Dilke approves in his recent book, The British Empire :
The title of Empire and the quality of a British possession
or dependency give to the work of Great Britain in India a
certain amount of ambiguity. There is about a government
of this kind a tinge of vain-glory which lends itself to the un-
amiable pride of race. The perfect type of the kind of work
which is carried on in India is to be seen in Egypt, where a
similar task has been undertaken without any outward show.
The British administrators in Egypt are true rulers because they
are truly the servants of the Egyptians. Englishmen whose
pride in their country consists in the pleasure which they de-
rive from the excellence of the work done by the nation care
little for names and titles. They do not want to call Egypt a
British possession or even a British protectorate, and are con-
tent that the work done for that country should be such as
commands the approval of impartial judges. . . . Lord
Cromer and his assistants are the representatives of the noblest
work that has ever been undertaken by any nation, and in
carrying on that work, they personify the spirit of the British
Empire. . . .
The conception which we have formed of empire y that it consists
in services rendered to the races over whom it is extended^ is incon-
sistent with a desire for a monopoly, England may justly insist,
as far as her opportunities offer, that no European nation
shall found an Empire for the exclusive benefit of its own sub-
jects. We may be content that France in her Colonies shall
spread the spirit of French institutions; that Russia shall
Russify the inhabitants of the Steppes of Central Asia, and that
the German Colonies in Africa shall be administered according
to German traditions and in accordance with German ideas.
But we may fairly demand the general recognition of the canon
which we have set up for ourselves^ that a community capable of
self-government shall regulate its affairs udthout restriction
536 The Administration of Dependencies
according to its judgment^ but that where we are acting as trustees
for a race subject to our rtUcy we have no right to exclude the
trade or the intercourse of other nations,
Mr. Chamberlain's views of the mission of the British
Empire are well known. According to him, the purpose
of the exercise, by England, of the Imperial power is to
extend the Pax Britannica over all the people of the Em-
pire, and to keep the peace by arbitrating disputes with
and between the strong Colonies, and equalizing eco-
nomic conditions between all parts of the Empire. In
a speech before the Royal Colonial Institute, delivered
in 1897, he declared that with respect to the self-govern-
ing Colonies "the sense of possession has given place to
the sentiment of kinship " ; and that with respect to those
not capable of self-government, **the sense of possession
has given place to the sense of obligation." Speaking of
this obligation, he said :
We feel now that our rule over these territories can be
justified only if we can show that it adds to the happiness and
prosperity of the people. . . . Such a mission involves
great responsibility. . . . Great is the task, great is the
responsibility, but great is the honor; and I am convinced
that ... we shall be able to fulfil the mission which our
history and national character have imposed upon us.
Upon the whole, it seems not too much to say that
the sentiment of the English people for humanity and
justice has rendered obsolete the theory for which Eng-
land stood in the war with the American Colonies, and
that the British Empire of to-day is a Federal Empire.
CHAPTER XXVI
AMERICAN ADMINISTRATION, 1787-I902
THE first Congress which assembled after the adop-
tion of the Constitution, by an Act passed at its first
session in the year 1789, recognized that it was its
duty to withdraw from the direct administration of the de-
pendencies in the Northwest Territory. Although, under
the Ordinance of 1787, the reports of the Governor were
required to be made to the Congress, and the Congress
had power to appoint and remove all the officers con-
cerned in the Local Government of the Northwest Ter-
ritory, Congress, by this Act, recognized that these
functions ought properly to be performed by the Presi-
dent. The officers of the Local Government of the
Northwest Territory were not considered to be "officers
of the United States" which, under the Constitution
of the United States, the President was authorized to
appoint by and with the advice of the Senate. If they
had been, no Act of Congress would have been neces-
sary. The provisions of the Constitution would have
controlled, and would have superseded the inconsistent
provisions of the Ordinance of 1787. The preamble stated
that the purpose of the Act was to "adapt ** the Ordi-
nance of 1787 to the Constitution. If the Constitution
had controlled the Ordinance, it would not have been
proper to speak of "adapting** the Ordinance to the
Constitution. The Ordinance was plainly recognized as
a "needful rule and regulation respecting" the North-
west Territory, made in the exercise of the power of
537
538 The Administration of Dependencies
disposition, and forming a part of the Imperial Constitu-
tion relating to the Northwest Territory, and the purpose
of the Act was to "adapt" the Imperial Constitution to
the Constitution of the American Union — that is, to apply
a similar rule where the local conditions and circumstances
of the Union and its dependencies were the same, and
a different rule where the local conditions and circum-
stances of each were different. Only that which is co-
ordinate with another thing can be "adapted" to it.
During the period from 1787 to 1799, the Governor and
Judges, acting as the Local Legislature, framed laws such
as they considered to be adapted to the needs of the in-
habitants of the Territory, the provision of the Ordinance
which required them to select laws from the laws of some
one of the States having been found to be impracticable.
Though these laws were obviously void. Congress re-
frained, after careful consideration, from taking any ac-
tion to nullify them, and in 1799 ^^ey were re-enacted by
the General Assembly, upon the establishment of the
Temporary Government. During all this period Congress
also refrained from enacting any local legislation for the
Northwest Territory, thus recognizing the statehood of
this dependent region, and recognizing the Governor and
Judges as the Substituted and Trustee Government for
the people of the region, as a dependent State.
The same system of government which was applied to
the Northwest Territory by the Ordinance of 1787, as
adapted to the Constitution by the Act of 1789, was ap-
plied to the dependencies southeast of the Ohio River as
they were formed, it being made a condition in the deeds
of cession from North and South Carolina and Georgia
that this system should be applied, with the exception
of the anti-slavery provision.
When the Louisiana Purchase was being discussed in
Congress in December, 1803, Henry W. Livingston, then
a Member of Congress from New Jersey, wrote to Gou-
/
American Administration, 1 787-1 902 539
verneur Morris to obtain from him his views concerning
the scope and meaning of the clauses of the Constitution
relating to the disposition of the dependencies, and to
the admission of new States into the Union. Morris re-
plied that the Convention intended both these clauses to
have an inclusive and universal meaning. Relating to
the former, he wrote:
I always thought that when we should acquire Canada and
Louisiana it would be proper to govern them as provinces and
allow them no voice in our councils. In wording the third
section of the fourth Article I went as far as circumstances
would permit to establish the exclusion. Candor obliges me
to add my belief that, had it been more pointedly expressed,
a strong opposition would have been made.
After Jefferson had once become satisfied that Louisi-
ana had, by the operation of the treaty of cession, be-
come a dependency of the American Union, he seems to
have felt no doubt but that the power of the Union over
Louisiana was unconditional and unlimited. The Act
of 1804, entitled **An Act Erecting Louisiana into Two
Territories and Providing for the Temporary Government
thereof," in fact provided for the government of that
region, without any reference to any specific period of
duration, by a more absolute form of government than
was ever imposed by Great Britain upon any of the
American Colonies. The whole political power in the
Local Government of the region was vested in a Governor
and a Council of thirteen members, all appointed by the
President, by and with the advice and consent of the
Senate. The Governor and his Council constituted a
Legislative Assembly, with legislative powers extending
to all rightful subjects of legislation, except that no law /
was to be valid that was inconsistent with the Consti-
tution of the United States. Certain specified Acts of
540 The Administration of Dependencies
Congress were to be reg^ded as in force in the region,
and Congress assumed that it had the right to make lavs
of sufficient force and validity to bind the inhabitants of
the region in all cases whatsoever, according to its mere
will.
The committee of the House of Representatives ap-
pointed to consider and report upon the petition of the
inhabitants of Louisiana to be relieved from some of the
more arbitrary provisions of the Act of 1804, ^^ thai
report, made January 25, 1805, said:
Relying on the good sense of the people of Louisiana to
point out to them that the United States cannot have incurred
a heavy debt in order to obtain the Territory, merely with a
view of exclusive or especial benefit of its inhabitants, your
committee at the same time earnestly recommend /Aaf every
indulgence not incompatible with the interests of the Union may
be extended to them. Only two modes present themselves^ ivhereby
a dependent province may be held in obedience to a Sailer eign State
— -force and affection. The first of these is not only repugnant
to all our principles and institutions of government, but it
could not be more odious to those on whom it would operate
than it would be hostile to the best interests as well as the
dearest predilections of those by whom, in this instance, it
would have to be exercised. The United States . . .
form the patrimony of a free and enlightened people who
control, while they constitute the fund from which men and
money, of which military power is composed, can be drawn.
It can never be the interest, therefore, of the people of the
United States to subject themselves to the burthens and their
liberties to the dangers of a vast military force, for the subju-
gation of others. The only alternative, then, which presents
itself, is believed to be not more congenial to the feelings than
to the best interests of the Union.
Government by *' affection" as the only alternative to
a government by ** force " had been expressly repudiated
American Administration, 1 787-1902 541
by the Continental Congress in its resolution of April 14,
1778, concerning the proposition of the British Govern-
ment to give the Colonies a government founded on
"affection," at the same time that it claimed that the
Imperial power of the British State was unconditional
and unlimited.
They saw, in an instant, that a government by affection
was a government by force in disguise, and that the only
permissible alternative to government by force was, as
Jefferson well said, in his letter of September 13, 1786,
to M, Soul^s, a government by "compact," which com-
pact, as Gouverneur Morris showed in his Observations on
the American Revolution^ might be express or implied,
written or unwritten. More than that, the Continental
Congress had refused to admit that government by force,
in time of peace, whether undisguised or disguised in the
form of government by affection, was permissible at all,
and had claimed that every possible relationship between
a State and its external communities was a relationship
between itself as a State and them as States, founded on
a compact between them.
In an Act passed three days previous to the Act pro-
viding for the government of Louisiana, relating to the
Bank of the United States, it was provided :
That the President and Directors of the Bank of the United
States shall be and they are hereby authorized to establish
offices of discount in any part of the territories or dependencies V
of the United States;
At the same session Congress passed an Act, relating
to the exemplification and proof of public records, which
extended the previous Act on this subject to
the Public Acts ... of the respective territories of the
United States and countries subject to the jurisdiction of the J
United States.
an Fine Cc<»al cc Frsocs;. -v^s Tanf taoai^a. '"inf Z^iiixr
ti^^a! part o>f Frarac.*-, as^i t:
f ?0aEtf ^A cUrpeaiderxaes vere calicd Loot isie v£I
^ar.t <>f tee Impenal Stare, vas adopted b? t^fc* Sacrsne
In l%lo« the Supreme Cooit, sprakrr^ b^ ICr. CTTarf
Justice Uarshall, in a case inTolTisg the qoestaocx of d
jurivdfctkm of the courts in tiie Tciiitocw of Orii
^,S>r/ V. /V/^, 6 Cranch, i^h S^^^ coontenaaoe to tms
hfiihh and European theory of the administratioa of de-
pendencies by saying :
The pCfwer of governing and legislating for a TerritorT b
the ineritable consequence of the right to acquire and bold
ffrrritz/ry. Could this position be contested, the Consdtntioii
of the (y nitcd States declares that ** Congress shall hare power
to (\\%]}<)%t of and make all needful rules and regulations re-
*pectinj< the territory or other property belonging to the United
State*/' Accordingly we find Congress possessing and exer-
t'\%\r\\i^ the absolute and undisputed power of governing and
kjilifilating for the Territory of Orleans. Congress has given
thcrn a Legislative, an Executive, and a Judiciary, with such
powerH an it has been their will to assign to those departments
generally.
In the year 1820, the question of the relationship be-
tween the United States and its external communities
had incidentally to be considered by the Supreme Court,
in the case of Loughborough v. Blak€y 5 Wheaton, 317,
American Administration, 1 780-1 902 543
which was brought to test the validity of the imposition
of direct taxes, by Congress, on the inhabitants of the
District of Columbia. The claim was made by counsel,
on the argument, in behalf of the inhabitants of the Dis-
trict, that such taxation was taxation without representa-
tion and hence contrary to the fundamental principles
upon which the government of the United States was
founded. The Court differentiated the case of the Dis-
trict of Columbia and the regions dependent on the
American Union, on the North American continent and
immediately adjacent to the Union, colonized or ex-
pected to be colonized from the population of the Union,
and manifestly destined for admission into the Union as
States, from all regions, remote or insular, or inhabited
by populations of diverse race and civilization, and held
that dependencies of the former class (called "Terri-
tories") were subject to the mere will of Congress
"under the restrictions of our Constitution," and that
they had no right of representation in Congress. The
language of the Court was :
*^The difference between requiring a continent with an im-
mense population to submit to be taxed by a Government
having no common interest with it, separated from it by a vast
ocean, restrained by no principle of apportionment, and as-
sociated with it by no common feelings, and permitting the
representatives of the American people, under the restrictions
of our Constitution, to tax a part of the society which is either ^
in a state of infancy advancing to manhood, looking forward
to complete equality as soon as that state of manhood shall be
attained, as is the case of Territories, or which has voluntarily
relinquished the right of representation and has adopted the
whole body of Congress for its legitimate Government (like the
District of Columbia), is too obvious not to present itself to
the minds of all.
By the decision, the government of the Territories by
544 The Administration of Dependencies
the Congress of the United States, which was, as to
them, a mere oligarchy of foreigners, acting according to
its mere will except so far as the people of the American
Union (also foreigners) had restrained them from so doing
by the terms of the written Constitution of the United
States, was justified by the Court on two grounds: first, i
that this foreign oligarchy was "under the restrictions of
our Constitution ** concerning the extent of its powers
(though under none in regard to the manner of exercising
them) ; and second, because the Territories were in a state
of weakness which prevented them from making any suc-
cessful opposition to what this foreign oligarchy might
do, and the foreign oligarchy would be likely to give them
a government by affection instead of a government by
force because the people of the United States and the
people of the Territories were **a part of the same so-
ciety " and were "associated by common feelings."
The government of the District of Columbia by the
Congress of the United States as an oligarchy of for-
eigners, acting according to its mere will, under the
restrictions of the Constitution, was justified because the
District had "voluntarily relinquished the right of repre-
sentation and adopted the whole body of Congress for its
legitimate Government."
In further justification of its decision, the Court dis-
tinctly adopted the British view, that the Territories and
the District of Columbia were mere external municipali-
ties of the United States, so that they were all compre-
hended in one political organism, or State, called "the
United States of America." Speaking of the name "the
United States of America," the Court said:
Does this term designate the whole or any particular part of
the American Empire? Certainly this question can admit of
but one answer. It is the name given to our great Republic,
which is composed of States and Territories. The District of
American Administration, 1 787-1 902 545
Columbia, or the territory west of the Missouri, is not less
within the United States than Maryland or Pennsylvania.
The Court thus considered that the whole political U-
organism, composed of the American States and the
American Territories, was both an American Republic — *"
that is, an American State — and an American Empire. "^
They considered the American Empire to be a Unitary ^
State, in which the Federal State, composed of the States
represented in Congress — the American Union, — was not
only the Imperial State of the Territories, as its depen-
dencies, but the Supreme Legislature, the Supreme Ex-
ecutive and the Supreme Judiciary of the Territories as
mere municipalities. This Imperial State was regarded
as having power to make laws and statutes of sufficient
validity to bind the Territories and their inhabitants in
all cases whatsoever, subject to "the restrictions of our
Constitution." What these restrictions were the Court
did not specify. The principles of the British Empire were
applied to America, with some indefinite modifications.
The Court, while giving the preference to this concep-
tion of the American Empire, did not base its decision
wholly upon this conception. Recognizing that the
American Empire was capable of being conceived of as
a federal organism so that the powers of Congress in the
Territories were powers of disposition only, they held
that the levying of the taxes in the particular case was,
since they were uniform with those levied in the States
of the Union, a "needful rule and regulation respecting "
the District of Columbia, saying:
It is not less necessary^ on the principles of our Constitution,
that uniformity in the imposition of imposts, duties, and ex-
cises should be observed in the [States] than in the [District
of Columbia and the Territories].
Had the decision made a distinction between the
35
546 The Administration of Dependencies
District of Columbia and the Territories and regarded the
power over the District as a power of limited legislation,
— a power in Congress to act according to its mere will
"subject to the restrictions of our Constitution," — and the
power over the Territories and other dependencies as a
power of conditional legislation — a power of disposition, —
no fault could be found with it. The District of Columbia
is undoubtedly "within the United States," since by the
Constitution the Congress is made its Supreme Legis-
lature. The Territories are however expressly described
by the Constitution as external States "belonging to"
the United States, and the American Union — "the
United States " — is given the Imperial power to dispose
of them as their Sovereign and to enact executive
legislation.
In the case of Johnson v. Mcintosh^ 8 Wheaton, 589,
in the year 1823, the question was concerning the validity
of grants of lands in the dependent regions external to
the Union, made by Indians or by Indian tribes to indi-
viduals in the years 1773 and 1775, while the Indian tribes
were under the protection and disposition of the British
Crown, and while the British Crown claimed the right of
pre-emption of all Indian lands. It was held that the local ^
circumstances and conditions of the Indian tribes were
such that they justified the American Union in refusing
to recognize the grants as valid, although it was admitted
that, under ordinary circumstances, the private rights of
individuals in the dependencies were inviolable by the
Central Government of the Union to the same extent as
similar rights of inhabitants of the Union. The argu-
ment of the opinion was that the local circumstances and
conditions of the Indians required their complete isolation
from the whites, under their own government, and a re-
striction of the region occupied by them, which could
be accomplished in an orderly and peaceful manner only
if all grants of land to individual white men were for-"
American Administration, 1 787-1 902 547
bidden and it was required that the Indians should sell
only to the Imperial State. The Court, speaking by Mr.
Chief Justice Marshall, said:
The British Government, which was then our Government,
and whose rights have passed to the United States, asserted a
title to all the lands occupied by Indians, within the chartered
limits of the British Colonies. It asserted also a limited
sovereignty over them, and the exclusive right of extinguish-
ing the title which occupancy gave to them. These claims
have been maintained and established as far west as the Mis-
sissippi, by the sword. The title to a vast portion of the lands
we now hold originates in them. It is not for the courts of
this country to question the validity of this title or to sustain
one which is incompatible with it.
Although we do not mean to engage in the defence of those
principles which Europeans have applied to Indian title, they
may, we think, find some excuse, if not justification, in the
character and habits of the people whose rights have been
wrested from them.
The title by conquest is acquired and maintained by force.
The conqueror prescribes its limits. Humanity, however,
acting on public opinion, has established, as a general rule,
that the conquered shall not be wantonly oppressed, and that
their condition shall remain as eligible as is compatible with
the objects .of the conquest. Most usually, they are incor-
porated with the victorious nation, and become subjects or
citizens of the government with which they are connected.
The new and old members of the society mingle with each
other; the distinction between them is gradually lost, and they
make one people. Where this incorporation is practicable^
humanity demands, and a wise policy requires, that the rights
of the conquered to property should remain unimpaired ; that
the new subjects should be governed as equitably as the old,
and that confidence in their security should gradually banish
the painful sense of being separated from their ancient con-
nections and united by force to strangers.
When the conquest is complete, and the conquered inhabi-
548 The Administration of Dependencies
tants can be blended with the conquerors, or safely governed
as a distinct people, public opinion, which not even the con-
queror can disregard, imposes these restraints upon him ; and
he cannot neglect them without injury to his fame and hazard
to his power.
But the tribes of Indians inhabiting this country were fierce
savages, whose occupation was war, and whose subsistence
was drawn chiefly from the forest. To leave them in posses-
sion of their country was to leave the country a wilderness;
to govern them as a distinct people was impossible, because
they were as brave and high-spirited as they were fierce, and
were ready to repel by arms every attempt on their inde-
pendence.
What was the inevitable consequence of this state of things?
The Europeans were under the necessity either of abandoning
the country and relinquishing their pompous claims to it, or
of enforcing those claims by the sword and by the adoption
of principles adapted to the condition of a people with whom
it was impossible to mix and who could not be governed as a
distinct society, or of remaining in their neighborhood and
exposing themselves and their families to the perpetual hazard
of being massacred.
Frequent and bloody wars, in which the whites were not
always the aggressors, unavoidably ensued. European policy,
numbers, and skill prevailed. As the white population ad-
vanced, that of the Indians necessarily receded. The country
in the immediate neighborhood of agriculturists became unfit
for them. The game fled into thicker and more unbroken
forests, and the Indians followed. The soil, to which the
Crown originally claimed title, being no longer occupied by
its ancient inhabitants, was parcelled out according to the will
of the sovereign power, and taken possession of by persons
who claimed immediately from the Crown, or mediately,
through its grantees or deputies.
That law which regulates, and ought to regulate in general,
the relations between the conqueror and conquered, was in-
capable of application to a people under such circumstances.
The resort to some new and different rule, better adapted to
American Administration, 1 787-1902 549
the actual state of things, was unavoidable. Every rule which
can be suggested will be found to be attended with great
difficulty.
However extravagant the pretension of converting the dis-
covery of an inhabited country into conquest may appear, if
the principle has been asserted in the first instance and after-
wards sustained; if a country has been acquired and held
under it; if the property of the great mass of the community
originates in it, it becomes the law of the land and cannot be
questioned. So, too, with respect to the concomitant prin-
ciple, that the Indian inhabitants are to be considered merely
as occupants, to be protected, indeed, while in peace, in the
possession of their lands, but to be deemed incapable of trans-
ferring the absolute title to others. However this restriction i
may be opposed to natural right, and to the usages of civilized |
nations, yet, if it be indispensable to that system under which
the country has been settled, and be adapted to the actual
condition of the two peoples, it may, perhaps, be supported
by reason, and certainly cannot be rejected by courts of
justice.
This case recognized a third class of dependencies — tr
those adjacent to the American Union, but manifestly
destined never to be incorporated as States into the
Union and unfitted for free commerce and intercourse
with the Union. Such dependencies were to be admin-
istered not "under the restrictions of our Constitution,"
not even by ** the rule which regulates or ought to regu-
late, in general, the relations between the conqueror and
the conquered," but by "some new and different rule^
better adapted to the actual state of things."
The right of pre-emption of soil claimed by a State
against uncivilized dependencies is a right growing out of
the natural right of a State to isolate its dependencies
from itself to the extent necessary for the good of the
whole Empire composed of itself and them, and to use
all reasonable and proper means to accomplish this end.
C^tJ- ;. tie .XjttmimsTnHion: >f UraeaiienciES
fjp!*>it*! i%«r %^ -lie rxvT-izfr: wscsc^ TBe- Zan^dnztzoxL.^
He ^viftritij^kkiT if Ttxe: '^jTiiite: xrr^ ia far i& dner se
^>oHe%h^. r^^yn^itu^rxnir -tie .ocsl .u .iiiiftf^inr^ ozzcL con-
-f^fiATK -if ':tie jgueactfarar^; jbt- rip^r- Inrni vzzrcnxii-
?t;#ff#;^ :»ff/i r*vuutimUL nxaar :ir ia tUiiimiuMly orinnsirc
tV/vn "Iwie rftich ^sosrin the "mTirTTai rrayr-jg: ro. reqmie
ifl "be lmwr*.;ifi rxax^ sre re^smsd: js 3i rnzxdsDiiestai 3S
r^l !lie ^se -vf A-mrrz^.zit Irtsstrjoa: Zmmatr x. Lilui^zr,
i i^-^tjm, 4t4f> ieciiied in ntrL x Trrranr- irrr^H^nr fior
file ?^ipf^<(Tn\^ Ovitz to nesnave rfag •^ri5g^TlFf^fl^^■r^w in wixich.
Aftd ^itUten ftnm Ita deciaian in rne cac of Hjm^maramgk
'9, f^l/$ke^ B>5iaii«e rhe SM-oreaie ^Ijiirr iizad. richer tfaac the
jrtwle jy^tic^ rvr^anian conssing^ if rhir Ainecxcsn
.^;ife» apn<l TerrlCM^Ies^ was. at one amerr, i Stats, it
;%ry.>eri fH;jpt it -yart i Federat_5tat2^ 'if wixick tfie Terxi-
*/^>,!i jr*r-* \f /^m rver-Arat^i!!, tiiuii;^ A^Tiimir nenresenta-
^^i'^ <?<•/', vi^nt^/ ;t vi:^ claimed tnar all caurts oi the Terri-
"f/r's^.^ ;u*r^ ^SrxiZfui States Courts, at the rsme kind as
fh^'/v* vhi^.h th<* Con-sT^^-i 'V'is^ dt tne Canadtution,
^.r*r*/'/r;/i*/-l t/'> ^tabiiih in the Stares* If so. as the juris-
''t^<fi/'>n of th<^^ court.^ -wad cstabLisaed by the Co ostitii-
tWfti, it WA^ Tifyi-ifA that every court m the Territories
h;*/I fh/*: jirivliction of a United States Court. This re-
f\n\r^A th^ Siip>rcmc Court to decide whether the political
//f$<;»rii^fri com^^y^d of the American Union and the
1 rrnUfum wa«t a Federal State or a Federal F.mpire.
Th*^ Cofjrt decided that it was not a Federal State. The
(nufi% in the Territories, they said, were not United
Htatc«» Courtji, though the Congress might, if it saw fit.
American Administration, 1 787-1902 55 ^
establish courts in the Territories which would have the
same jurisdiction and be related in the same way to the
Territories as the United States Courts in the States were
related to the States. They held that Congress might
establish such courts in the Territories as it saw fit, with-
out reference to the provisions of the Constitution relat-
ing to the courts of the United States, and might confer
upon them any kind of jurisdiction it thought proper.
In the opinion of the Supreme Court, delivered by
Chief Justice Marshall, it was said:
[The inhabitants of Florida] do not . . . participate in
political power; they do not share in the govemraent [of the
United States] till Florida shall become a State. In the mean-
time, Florida continues to be a Territory of the United States,
governed by virtue of that clause in the Constitution which
empowers Congress "to make all needful rules and regulations
respecting the territory or other property belonging to the
United States."
Perhaps the power of governing a Territory belonging to the
United States which has not, by becoming a State, acquired
the means of self-government, may result necessarily from the
facts that it is not within the jurisdiction of any particular
State and is within the jurisdiction of the United States. The
right to govern may be the inevitable consequence of the right
to acquire territory. Whichever may be the source whence
the power is derived, the possession of it is unquestioned.
These courts, then, are not Constitutional courts, in which
the judicial power conferred by the Constitution on the Gen-
eral Government can be deposited. They are Legislative
courts, created in virtue of the general right of Sovereignty
which exists in the Government, or in virtue of that clause
which enables Congress to make all needful rules and regula-
tions respecting the territory belonging to the United States.
The jurisdiction with which they are invested is not a part of
that judicial power which is defined in the third Article of the
552 The Administration of Dependencies
Constitution, but is conferred by Congress, in the execution
of those general powers which that body possesses over the
Territories of the United States. Although admiralty juris-
diction can be exercised in the States in those courts only
which are established in pursuance of the third Article of the
Constitution, the same limitation does not extend to the Terri-
tories. In legislating for them, Congress exercises the com-
bined powers of the General and of a State Government.
Prior to 1850, the usual provision relating to the power
of the Legislatures of the Territories was :
The legislative powers shall extend to all the rightful sub-
jects of legislation ; but no law shall be valid which is incon-
sistent with the Constitution and laws of the United States.
The Governor shall publish throughout the said Territory all
the laws which shall be made, and shall from time to time
report the same to the President of the United States, to be
laid before Congress; which, if disapproved by Congress,
shall thenceforth be of no force.
This was the exact language used in the Act of March
26, 1804, establishing a Temporary Government for
Louisiana. These same words were used to describe
the power of territorial legislation in the Act of Congress
of March 30, 1822, establishing a Territorial Government
in Florida. In the Act of April 20, 1836, establishing a
Territorial Government in Wisconsin, and in the Act of
June 12, 1838, establishing a Territorial Government in
Iowa, in the Act of August 14, 1848, establishing a Terri-
torial Government in Oregon, and in the Act of March
3, 1849, establishing a Territorial Government in Minne-
sota, the same formula was used, except that the words
**but no law shall be valid which is inconsistent with the
Constitution and laws of the United .States" were
omitted. The omission was, however, supplied by other
provisions in the Acts, placing these Territories under
American Administration, 1 787-1 902 553
the regime of the Ordinance for the Government of the
Northwest Territory (according to which, they were
"subject to the Articles of Confederation and to such
alterations therein as shall be constitutionally made, and
to all the Acts and Ordinances of the United States in
Congress assembled, conformable thereto"), and extend-
ing over the Territory the laws of the United States,
"so far as the same, or any provision thereof, may be
applicable." * Mississippi, Indiana, Michigan, Illinois,
and Alabama were, by the terms of the cession, under
the regime applicable to the Northwest Territory.
^ There can be no doubt, therefore, that, up to March 3,
1849, ^^ undisputed theory prevailed throughout the
American Union and its dependencies that it and its de-
pendencies constituted an American Empire, under an
unwritten and "flexible" constitution, of which the pro-
visions of the Constitution and laws of the American
Union which were applicable to the respective depen-
dencies, considering their local conditions and circum-
y^ stances, formed a part.
In 1849, Calhoun revived the theory which had been
repudiated by the Supreme Court in the case of American
Insurance Company v. Canter^ that the Territories were
imperfect Member-States of the American Union, so
that the Constitution of the American Union was in force
in the Territories in exactly the same sense that it was
in force in the States. Benton, in his Historical and
Legal Examination of the Dred Scott Case, published in
1857, cjuotes the following language used by Calhoun in
the Senate in support of his proposition, speaking of the
treaty with Mexico, ceding New Mexico and California:
I deny that the laws of Mexico can have the effect attributed
to them — that of keeping slavery out of New Mexico and
California. As soon as the treaty between the two countries
is ratified, the sovereignty and authority of Mexico in the terri-
554 The Administration of Dependencies
tory acquired by it becomes extinct, and that of the United
States is substituted in its place, conveying the Constitution
with its overriding control over all the laws and institutions of
Mexico inconsistent with it.
The distinction between Calhoun's theory and the
previous theory seems to be this : Calhoun claimed that
the Territories were to be treated as external munici-
palities, but were to be assimilated as closely as possible
to the States of the Union, regardless of their wishes and
regardless of their local conditions and circumstances.
The previous theory was that they were entitled to such
a regime of autonomy and statehood as would have
been given them had they been free and equal States
which had entered into a compact with the American
Union, made on a basis of equality and in which full ac-
count was taken both of the Constitution of the United
States and of their local conditions and circumstances,
by which they had voluntarily entered into a relationship
of permanent dependency on the Union. Calhoun's
theory substituted a government by force in the Terri-
tories for an administration of them based on compact.
In the Organic Act of New Mexico in 1850, accepting
the cession of New Mexico by the State of Texas, a
section was inserted providing:
That the Constitution, and all laws of the United States
which are not locally inapplicable, shall have the same force
and effect within the said Territory of New Mexico as else-
where within the United States.
This same provision was inserted in the Organic Acts
of Colorado and Dakota (1861), of Arizona and Idaho
(1863), of Montana (1864), of Wyoming (1868), and of
Oklahoma (1890).
The Organic Act of Utah of 1850, however, contained
the following provision :
American Administration, 1 787-1902 555
That the Constitution and laws of the United States are
hereby extended over and declared to be in force in said
Territory of Utah, so far as the same, or any provision thereof,
may be applicable.
Between the New Mexico Act and the Utah Act, there
was the most fundamental difference. In the former,
the Constitution was declared to be literally in force in
the Territory; in the latter, to be in force only "so far
as the same, or any provision thereof, may be applicable.*'
In the former, it was declared to be a written Constitu-
tion imposed upon the Territory without its consent ; in
the latter, it was declared to be the basis of an unwritten
Constitution of an Empire of which the Territory formed
a part.
The plain purpose of the above-quoted provision of the \/
New Mexico Act, which was in exact conformity withf
Calhoun's theory, was, of course, to strengthen the claim
of the Southern States that Congress had power to im-
pose slavery upon the Territories. If the Constitution
of the United States was in force in the dependencies
only so far as its provisions were applicable, considering
the local circumstances and conditions, and the Local
Governments of the Territories had power to make all
laws not inconsistent with the Constitution and laws of
the United States, it was possible to claim that Con-
gresSy in exercising the power to make municipal regu-
lations for the Territories, acted in substitution for
the Local Government, and that its powers were only
such as the Local Government would exercise if it
were the Government of a free and equal State in a
voluntary relationship of permanent dependency on
the Union, in which case it was exceedingly doubtful
whether Congress could impose slavery upon any of
the Territories, and it was certain that it could not
impose it upon all of them. It was for the interest of
556 The Administration of Dependencies
the Southern States, therefore, to have the Territories
treated as nearly like the States of the Union as possible,
and then to have Congress regard itself as a substitute
for a State Government. The result was to require Con-
gress to exercise its powers in the Territories "subject to
the restrictions of the Constitution," one of which re-
strictions was, as the slaveholding States claimed, that
Congress should not only not deprive persons of their
property in slaves, but should recognize and protect
this alleged right of property.
Beginning with the Act of September g, 1850, estab-
lishing a Territorial Government in Utah, and until the
Act of May 2, 1890, establishing a Temporary Govern-
ment in Oklahoma, every Act of Congress establishing a
Territorial Government, with one exception, provided
that the legislative power of the Territory should "ex-
itend to all rightful subjects of legislation, consistent with
the Constitution of the United States." The one excep-
tion was the Act of March 2, 1853, establishing a Ter-
ritorial Government in Washington Territory, which
followed the old formula — that the Territorial legislation
should be** not inconsistent with" the Constitution and
laws of the United States. Since 1890, the old formula
has been followed. »
In the Dred Scott Case {Scott v. Sandfordy 19 Howard,
393) decided in 1857, the relationship between the Con-
stitution of the United States and the Constitution of
the American Empire was again examined, and two dis-
tinct views developed : the first, that all the restrictions
(both express and implied) imposed by the Constitution
upon either the National Government or the State Gov-
ernment were literally in force in the dependencies; and
second, that only the express prohibitions of the Consti-
tution were in force. It was not suggested by any of the
Judges that the Constitution was in force "so far as the
same, or any provision therof, might be applicable."
/
American Administration, 1 787-1902 557
The whole Court attempted to treat the Constitution
of the United States as if it were actually the written
Constitution of the Empire, instead of being the basis of
the unwritten Constitution of the Empire. Realizing
that it was impossible, in the nature of things, to treat
it literally and totally as the Constitution of the Empire,
they attempted to take a part of it and declare that to
be the written Constitution of the Empire.
Mr. Chief Justice Taney, in that case, attempted to
read out of the Constitution the clause giving Congress
the power "to dispose of and make all needful rules and
regulations respecting" the dependencies by confining
it entirely to the Northwest Territory, and others of
the Judges attempted to destroy its effect by interpret-
ing it as having reference only to dispositions of the
primary title to the soil in the dependencies, but the
majority of the Court in that case did not adopt either
of these constructions, and there is nothing to prevent
the Supreme Court, at the present time, from giving to
the clause its most universal meaning.
From the time of the decision of the Dred Scott Case
until the present time, the question of the relationship
between the Constitution of the United States and the
Constitution of the American Empire has been under
consideration by the Supreme Court. That the Consti-
tution of the United States and the Constitution of the
American Empire are not, and cannot be one and the
same thing, is evident from the most casual inspection of
the Constitution of the United States, which contains
numerous provisions which cannot by any possibility be
regarded as applicable to the Territories or other depen-
dencies of the United States. There is in this Constitu-
tion hardly a single provision which any judicious person
would be willing to say was applicable to every depen-
dent community, whatever might be the character of its
civilization and whatever might be its local conditions
I
558 The Administration of Dependencies
and circumstances. Yet that there must be some rela-
tionship between the Constitution of the Imperial State
and the Constitution of the Empire, whether the Consti-
tution of the Imperial State be written or unwritten, and
whether the Imperial State be unitary or federal in char-
acter, is a proposition which hardly any judicious person
at the present time doubts.
The view taken by the Supreme Court in the Dred
Scott Case, that the American Union had unconditional
and unlimited power over its dependencies ** subject to
the restrictions of the Constitution," was followed in a
long course of decisions until the year 1889.
One of the most notable cases on this subject during
this period was the case of National Bank v. County of
Yankton y loi U. S., 129, decided in 1879. Mr. Chief
Justice Waite, delivering the unanimous opinion of the
Court, upholding the power of Congress to disapprove
and annul Territorial legislation, said:
The Territories are but political subdivisions of the outlying
dominion of the United States. Their relation to the General
Government is much the same as that which counties bear to
the respective States, and Congress may legislate for them as
a State does for its municipal organizations. The organic
law of a Territory takes the place of a Constitution as a
fundamental law of the Local Government. It is obligatory
and binds the Territorial authorities; but Congress is su-
preme, and for the purposes of this department of its govern-
mental authority has all the powers of the people of the United
States, except such as have been expressly or by implication
reserved in the prohibitions of the Constitution.
Congress may not only abrogate laws of the Territorial
Legislature, but it may itself legislate directly for the Local
Government. It may make a void Act of the Local Legis-
lature valid, and a valid Act void. In other words, it has
full and complete legislative authority over the people of the
Territories and all the Departments of the Territorial Govern-
American Administration, 1 787-1 902 559
ments. It may do for the Territories what the people, under
the Constitution of the United States, may do for the States/'
As further illustrating the view taken by the Supreme
Court during this period, there may be quoted the fol-
lowing language of the Court in the case of Murphy v.
Ramsey^ 114 U. S., 15, decided in 1884, which involved
the question of the power of Congress to disapprove and
annul certain legislation of the Territory of Utah — the
opinion being delivered by Mr. Justice Matthews:
The people of the United States, as sovereign owners of the
National Territories, have supreme power over them and their
inhabitants. In the exercise of this sovereign dominion, they
are represented by the Government of the United States, to
whom all the powers of government over that subject have
been delegated, subject only to such restrictions as are ex-
pressed in the Constitution, or are necessarily implied in its
terms, or in the purposes and objects of the power itself; for
it may well be admitted in respect to this, as to every power
of society over its members, that it is not absolute and un-
limited. But in ordaining government for the Territories and
the people who inhabit them, all the discretion which belongs
to legislative power is vested in Congress; and that extends,
beyond all controversy, to determining by law, from time to
time, the form of the local Government of a particular Terri-
tory, and the qualification of those who shall administer it.
It rests with Congress to say whether, in a particular case, any
of the people, resident in the Territory, shall participate in
the election of its officers or the making of its laws; and it
may therefore take from them any right of suffrage it may pre-
viously have conferred, or at any time modify or abridge it, as
it may deem expedient.
The personal and civil rights of the inhabitants of the
Territories are secured to them, as to other citizens, by
the principles of constitutional liberty which restrain all the
agencies of government. State and National; their political
560 The Administration of Dependencies
rights are franchises which they hold as privileges in the legis-
lative discretion of the Congress of the United States.
In 1889, in the case of The Mormon Church v. The
United States^ 136 U. S., i, the Supreme Court, finding it
necessary, in the interests of justice and good government,
to justify an Act of Congress confiscating the property of
the Mormon Church in the Territory of Utah, and recog-
nizing that the Act could not be sustained if the express
prohibitions of the Bill of Rights bound Congress in its
disposition of the Territories, announced a doctrine
which meant nothing else than that the American Em-
pire, consisting of the American Union and its depen-
dencies, was under an unwritten Constitution of which
the Constitution of the United States was the basis.
Speaking by Mr. Justice Bradley, the Court said:
Doubtless Congress, in legislating for the Territories, would
be subject to those fundamental limitations in favor of per-
sonal rights which are formulated in the Constitution and its
amendments, but these limitations would exist rather by in-
ference and the general spirit of the Constitution, from which
Congress derives all its powers, than by any express and
direct application of its provisions.
The limitations upon the power thus declared are at the
same time very indefinite and very extensive. Accord-
Zing to the theory of this opinion, no provision whatever
of the Constitution protecting the personal rights of
citizens of the States applies expressly and directly to
the power of the American Union and its Central Gov-
ernment over the dependencies, but every provision of
the Constitution in favor of personal rights may pos-
sibly apply, if its application can be justified **by infer-
^ence and the general spirit of the Constitution.** A
power which is limited by inference is not the kind of
power which is usually conferred on a representative
American Administration, 1 787-1 902 561
Legislature. It is not the usual function of a Legisla-
ture composed of necessarily non-expert delegates to
inquire whether the circumstances and conditions of
communities which none of the delegates represent, but
to which the powers of the Legislature extend, are the
same as those of communities represented, and from
hence to "infer " that express limitations upon the power
of the Legislature in the latter are, according to "the
general spirit of the Constitution," applicable in the
former. If a representative body has, in fact, as a part^
of its duties, to occupy itself with such "inferences," its
duties are essentially expert, and its powers of legislation
are incidental to its power of disposition. It is acting
under an unwritten Constitution.
In the case of McAllister v. The United States, 141
U. S., 174, which involved the question of the power of
Congress over the Judges of Territorial Courts with re-
spect to their term of office, suspension, or removal, the
Court, speaking by Mr. Justice Harlan, in upholding the
power of Congress in this respect, said :
How far the exercise of [the plenary power of Congress \
over the Territories of the United States] is restrained by the
essential principles upon which our system of government/
rests, and which are embodied in the Constitution, we need
not stop to inquire, though we may repeat what was said in
Mormon Church v. United States^ 136 U. S. i, 44: "Doubt-
less Congress, in legislating for the Territories, would be sub-
ject to those fundamental limitations in favor of personal rights
which are formulated in the Constitution and its amendments;
but these limitations would exist rather by inference and the
general spirit of the Constitution from which Congress derives
all its powers, than by any express and direct application of its
provisions."
Here was another enormous step forward. The power
of the American Union over its dependencies is, it was
36
562 The Administration of Dependencies
intimated, "restrained by the essential principles upon
which our system of government rests, and which are
embodied in the Constitution." This was a very diflfer-
ent proposition, indeed, from that advanced in the Mor-
mon Church case — that the power was restrained by
"those fundamental limitations in favor of personal
rights which are formulated in the Constitution and its
amendments." Tlie suggestion plainly is that every
provision of the Constitution is, in principle and so
far as applicable, a restriction upon the power of the
American Union and its Central Government over the
dependencies. At last the Supreme Court returned to
the principle of the old English Colonial Charters — that
all governmental action relating to the dependencies
should "not be repugnant to, but agreeable, as nearly as
may be, to the Constitution, laws and customs" of the
Imperial State, "considering the circumstances and con-
ditions " in the dependency, and the Congress of the
United States was declared to stand substantially in the
same relation to the dependencies as the King in Council
did to the American Colonies, though possessing, in
addition, full powers of legislation and execution, in aid
of its jurisdiction — that is, to have the power of disposi-^
tion of the dependencies.
Though Mr. Chief Justice Fuller, Mr. Justice Field, and
Mr. Justice Lamar dissented in the Mormon Church Case,
and Mr. Justice Field, Mr. Justice Gray, and Mr. Justice
Brown in the McAllister Case, their dissent did not go
to the statement of the majority regarding the effect of
the Constitution in the Territories.
In the case of Downes v. Bidwell, one of the so-called
Insular Tariff Cases, decided May 27, 1901, and reported
in 182 U. S., 244, involving the validity of the special
tariff for the island of Porto Rico, established by Act of
Congress on April 12, iqcx), the whole question of the re-
lationship of the Constitution of the United States to the
American Administration, 1 787-1 902 563
Constitution of the American Empire was again con-
sidered, and the power of the Union to establish this
special tariff was upheld by a majority of the Court.
Five of the Judges were of the opinion that the Con-
stitution of the United States is the basis of the un-
written Constitution of the American Empire, so that the
American Union is at liberty to treat its dependencies as
having natural rights of statehood and as entitled to a
regime either of autonomy or of assimilation according
to the local conditions and circumstances of each ; and
four were of the opinion that the Constitution of the
United States, or some part of it, is actually the written
Constitution of the American Empire, so that the Union
can recognize no right in the dependencies to a regime
of autonomy, but is obliged to force upon them, to an
extent not specified, a regime by which they shall be as-
similated, as nearly as possible, to the States of the
Union regardless of their local conditions and circum-
stances. Because the Constitution provides that all
taxes, duties, and imposts shall be " uniform throughout
the United States," the dissenting Judges were of
opinion that they must be likewise uniform throughout
the American Empire.
The regime which the French call the regime of assimi-
lation, the majority of the Supreme Court in the Insular
Tariff Cases call the regime of "incorporation." The
French word seems the more proper. ''Incorporation**
means "admission into the body and personality *' of the
State. In the case of a State under popular government,
incorporation of lands and populations can only occur by
admission of them to a representation in the Legislature
on equal terms with the lands and populations already
constituting the body and personality of the State, and
with equal participation in the vote for the Executive if
he is elective. In the case of a Federal State, incorpora-
tion of lands and populations can only occur when they
/
564 The Administration of Dependencies
form a State and that State is admitted into the Union
as a State, on equal terms respecting representation in
the Congress or Parliament, and with equal participation
in the vote for Chief Executive if he is elective. Lands
and populations, however, though not incorporated into
the State, may be dependent upon the State under a
regime similar in all respects except participation in the
election of the Central Government to that which pre-
vails in the lands and populations which are actually in-
corporated into the State. Such a dependency is under
the regime of "assimilation," as distinguished from the
regime of "autonomy."
Mr. Justice White, speaking also for Mr. Justice Shiras
and Mr. Justice McKenna, in his opinion maintaining
the proposition that the Constitution of the United States
is only the basis of the unwritten Constitution of the
Empire, and that the American Union has the right to
apply either the regime of assimilation or autonomy,
said:
In some adjudged cases, the power to locally govern at dis-
cretion has been declared to arise as an incident to the right
to acquire territory. In others it has been rested upon the
clause of Section 3, Article IV. of the Constitution, which
vests Congress with the power to dispose of and make all
^ needful rules and regulations respecting the territory or other
property of the United States. But this divergence, if not
conflict of opinion, does not imply that the authority of Con-
gress to govern the Territories is outside of the Constitution,
since in either case the right -is founded upon the Constitu-
tion, although referred to different provisions of that instru-
ment.
Whilst, therefore, there is no express or implied limitation
on Congress in exercising its power to create Local Govern-
ments for any and all of the Territories, by which that body is
restrained from the widest latitude of discretion, it does not
follow that there may not be inherent, although unexpressed,
American Administration, 1 787-1902 565
principles which are the basis of all free government, which
cannot be with impunity transcended. But this does not
I suggest that every express limitation of the Constitution which
! is applicable has not force, but only signifies that even in
cases where there is no direct command of the Constitution
which applies, there may nevertheless be restrictions of so
fundamental a nature that they cannot be transgressed, al-
though not expressed in so many words in the Constitution.
As Congress in governing the Territories is subject to the
Constitution, it results that all the limitations of the Constitu-
tion which are applicable to Congress in exercising this au-
thority necessarily limit its power on this subject. It follows
also that every provision of the Constitution which is applicable
to the Territories is also controlling therein.
........
It is insisted, however, conceding the right of the Govern-
ment of the United States to acquire territory, that, as all such
territory when acquired becomes absolutely incorporated into
the United States, every provision of the Constitution which
would apply under that situation is controlling in such ac-
quired territory. This, however, is but to admit the power
to acquire, and immediately to deny its beneficial existence. -
The general principle of the law of nations, already stated,
is that acquired territory, in the absence of agreement to the
contrary, will bear such relation to the acquiring government
as may be by it determined. To concede to the Government
of the United States the right to acquire, and to strip it of all
power to protect the birthright of its own citizens and to pro-
vide for the well-being of the acquired territory by such
enactments as may in view of its condition be essential, is, in
effect, to say that the United States is helpless in the family
of nations, and does not possess that authority which has at
all times been treated as an incident of the right to acquire.
Let me illustrate the accuracy of this statement. Take a
case of discovery. Citizens of the United States discover an
unknown island, peopled with an uncivilized race, yet rich
in soil, and valuable to the United States for commercial and
strategic reasons. Clearly, by the law of nations, the right
\
566 The Administration of Dependencies
to ratify such acquisition and thus to acquire 'the territor)'
would pertain to the Government of the United States. Can
it be denied that such right could not be practically exercised
if the result would be to endow the inhabitants with the
citizenship of the United States and to subject them not only
to local but also to an equal proportion of national taxes, even
although the consequence would be to entail ruin on the dis-
covered territory and to inflict grave detriment on the United
States to arise both from the dislocation of its fiscal system
and the immediate bestowal of citizenship on those absolutely
unfit to receive it ?
/ The result of what has been said is that whilst in an inter-
national sense Porto Rico is not a foreign country, since it
was subject to the Sovereignty of, and was owned by, the
United States, it was foreign to the United States in a domes-
tic sense, because the island had not been incorporated into
the United States, but was merely appurtenant thereto as a
possession.
Mr. Justice Brown, who was one of the five judges of the
majority, in his concurring opinion regarded the unwritten
Constitution of the American Empire as being almost
wholly divorced from the Constitution of the United
States, and as being determined, therefore, by the prin-
ciples of the general public law of the civilized world.
He suggested that there might be some express restric-
tions upon the power of the American Union in favor of
natural rights, contained in the Constitution of the United
States, which were of so universal a nature as to be ap-
plicable in whatever part of the universe the power of
the American Union was exercised.
In his opinion, Mr. Justice Brown made the following
suggestion concerning the effect of the Fourteenth
Amendment, which has by some persons been supposed
to make all persons born or naturalized in the depen-
/
American Administration, 1 787-1 902 567
dencies of the American Union ''citizens of the United
States":
The Thirteenth Amendment to the Constitution prohibiting
slavery and involuntary servitude * 'within the United States {,*• '
or any place subject to their jurisdiction " is also significant | ^^ [ *" *
as showing that there may be places within the jurisdiction of | ^^^^-^^^
the United States that are no part of the Union. To say that ^ ^^""^n.
the phraseology of this Amendment was due to the fact that \{f^
it was intended to prohibit slavery in the seceded States, *^
under a possible interpretation that those States were no
longer a part of the Union, is to confess the very point in
issue, since it involves an admission that, if these States were
not a part of the Union, they were still subject to the juris-
diction of the United States.
The Fourteenth Amendment, upon the subject of citizen-
ship, declares only that "all persons born or naturalized /Vi/
M^ Uniied States y and subject to the jurisdiction thereof, an
citizens of the United States and of the State in which the]
reside." Here there is a limitation to persons born or
naturalized in the United States which is not extended to
persons born in any place "subject to their jurisdiction.**
This amounts, of course, to saying that only persons '
born or naturalized within one of the States of the Union .
are citizens of the United States, since that was undoubt- ^
edly the case before the adoption of the Fourteenth
Amendment, and that Amendment establishes no rule
to the contrary — in other words, it amounts to saying
that the inhabitants of the dependencies of the American
Union are not citizens of the United States except so far
as some of them may have been born or naturalized in
some State of the Union.
Mr. Justice Gray, in his opinion concurring with that
of Mr. Justice White, committed himself only to the
proposition that the American Union, if it "is not ready
to construct a complete Government for the conquered
568 The Administration of Dependencies
territory . . . may establish a temporary Govern-
ment, which is not subject to all the restrictions of the
Constitution."
Mr. Chief Justice Fuller, in delivering the opinion of
the dissenting Judges (himself, Mr. Justice Harlan, Mr.
Justice Brewer, and Mr. Justice Peckham), denied that
the dissenting Judges regarded Porto Rico as "incor-
porated ** into the Union, saying:
Great stress is thrown upon the word "incorporation " as if
possessed of some occult meaning, but I take it that the Act
under consideration made Porto Rico, whatever its situation
before, an organized territory of the United States.
Mr. Justice Harlan, in his separate dissenting opinion,
after specifying the various acts of power exercised by
the American Union over Porto Rico under the terms of
the Porto Rico Act, thus criticised the use of the word
" incorporation '* in this connection:
It would seem, according to the theory of some, that even
if Porto Rico is in and of the United States for many impor-
tant purposes, it is yet not a part of this country with the
privilege of protesting against a rule of taxation which Con-
gress is expressly forbidden by the Constitution from adopting
as to any part of the * 'United States." And this result
comes from the failure of Congress to use the word * 'in-
corporate'* in the [Porto Rico] Act, although by the same
Act all power exercised by the Civil Government in Porto Rico
is by authority of the United States, and although this Court
has been given jurisdiction by writ of error or appeal to re-
examine the final judgments of the District Court of the
United States established by Congress for that Territory.
Suppose Congress had passed this act: **Be it enacted by the
Senate and Hous6 of Representatives in Congress assembled,
That Porto Rico be and is hereby incorporated into the
United States as a Territory,** would such a statute have
American Administration, 1 787-1 902 569
enlarged the scope or effect of the [Porto Rico] Act ? Would
such a statute have accomplished more than the [Porto Rico]
Act has done ? Indeed, would not such legislation have been
regarded as most extraordinary as well as unnecessary ?
I am constrained to say that this idea of *' incorporation "
has some occult meaning which my mind does not apprehend.
It is enveloped in some mystery which I am unable to unravel.
In my opinion, Porto Rico became, at least after the ratifi- I
cation of the Treaty with Spain, a part of and subject to the I
jurisdiction of the United States in respect of all its territory \
and people, and Congress could not thereafter impose any
duty, impost, or excise in respect to that Island and its inhabi-
tants which departed from the rule of uniformity established
by the Constitution.
The theory of the dissenting Judges seems to be that
the parts of the Constitution which apply to the depen-
dencies at all apply to them literally. Mr. Chief Justice
Fuller, in his opinion, said :
In our judgment, so much of the Porto Rican Act as au-
thorized the imposition of these duties is invalid, and plaintiffs
were entitled to recover.
Some argument was made as to the general consequences
apprehended to flow from this result, but the language of the
Constitution is too plain and unambiguous to permit its mean-
ing to be thus influenced. There is nothing **in the literal
construction so obviously absurd, or mischievous, or repugnant
to the general spirit of the instrument, as to justify those who
expound the Constitution " in giving it a construction not war-
ranted by its words.
If the dependencies of the American Union are not
"incorporated into" the body and personality of the
Union, as the dissenting Judges insist they are not, and
if they are nevertheless subject to the power of the
American Government under the express limitations of
the Constitution interpreted with the same literalness
570 The Administration of Dependencies
as if it were a question of their operation within the
States of the Union, it necessarily follows that the mi-
nority Judges regard all the American dependencies as
dependencies under a regime of assimilation.
The dissenting Judges criticized the theory of the ma-
jority, as a theory according to which the dependencies
of the American Union are subjected to "absolute" and
"unrestricted " power. They said:
The contention seems to be that if an organized and settled
Province of another Sovereignty is acquired by the United
States, Congress has the power to keep it, like a disembodied
shade, in an intermediate state of ambiguous existence for an
indefinite period; and, more than that, that after it has been
called from that limbo, commerce with it is absolutely subject
to the will of Congress, irrespective of constitutional pro-
visions.
• •••••• •
, That theory [of the majority of the Court] assumes that the
/Constitution created a Government empowered to acquire
countries throughout the world, to be governed by different
rules than those obtaining in the original States and Terri-
tories, and substitutes for the present system of republican
government a system of domination over distant Provinces in
^he exercise of unrestricted power.
^The plain and necessary meaning of the majority of
the Court is, however, that the power of the American
Union over its dependencies is neither an absolute power
nor an unrestricted power, but a conditional power and
a power limited by the necessity for its exercise in the
particular case. It is not a power which is exercised
by the Government of the American Union without a
Constitution, but a power exercised under a trust im-
posed on the Government of the American Union by the
people of the American Union, in their written Constitu-
\ tion, compelling the Government to adjudicate and
American Administration, 1 787-1902 571
execute an unwritten Constitution. The majority of the
Court recognize that a written Constitution is only the
best evidence of the unwritten Constitution which it evi-
dences, and that the same rule of the relationship be-
tween the Constitution of a State and the Constitution of
its Empire applies, whether the Constitution of the State
is written or unwritten, — that the Constitution of a State,
whether written or unwritten, is in force in its dependen-
cies so far as may be practicable, considering the local
conditions and circumstances of each dependency, and to
this extent forms a part of the unwritten Constitution
of the Empire of the State. There is nothing in this'
theory which militates against the interposition of the
Imperial Judiciary for the protection of private rights;
The very definition of the Imperial power in the Consti- \
tution as the power of disposition accompanied by a
power to make all needful rules and regulations, implies
a power existing somewhere to nullify all acts of the
American Union which are not acts of disposition, and
all legislative acts which are not "needful."
On the other hand, the theory of the dissenting
Judges, though apparently based upon a desire to pro-
tect the inhabitants of the dependencies against unlim-
ited governmental power, is really based upon the theory
that the power of the Imperial State over its depen-
dencies is a power based upon its will, supported by
force, and not upon compact. Any regime of assimila-
tion necessarily implies the non-recognition of the wishes
and desires of the people of the dependencies, and the
claim on the part of the people of the Imperial State
that what they consider good for them is good also for
the people of the dependencies. The enforcement of
limitations on governmental power may be an injustice
to the people of the dependencies, where it would be
doing justice to the people of the Imperial State. The
exercise of governmental power according to the neces-
572 The Administration of Dependencies
sity of the case is the prime necessity of all community
life, and to require power to be exercised in a certain
manner, which is not the manner dictated by the neces-
sity of the case, is practically to deny to the community
the prime necessity of community life, and to exercise
power which to all intents and purposes is, so far as the
people of the dependencies are concerned, "absolute"
and "unrestricted."
By the decision in the Insular Tariff Cases, the purpose
of the framers of the Constitution has been at last recog-
nized and fulfilled, and the American Empire is recog-
nized as a Federal Empire.
If the history of the instrumentalities by which the
American Union has performed its Imperial obligations
is examined, they will be found to reflect the views which
have been held, from time to time, concerning the po-
litical relationship.
From the beginning of the nineteenth century until
very recently, the Congress has regarded itself as the
sole representative of the American Union in the exer-
cise of the power over its dependencies. Though, by
the Organic Acts of the Territories, the President, by
and with the consent of the Senate, has been recognized
as having the power to appoint the Territorial Governors
and Secretaries and in some cases the Executive and
Legislative Councils, he has not been recognized until
recently as having any legislative power, except for
military purposes or purposes incidental thereto, either
negative or affirmative. This power has been claimed
and exercised solely by Congress. Though the reports
of Territorial Governors, when they have been made,
have always been made to the President, through one
of his Secretaries, it has been for the purpose of laying
them before Congress.
>, By Act of 1884, the District of Alaska was given a form
of government wholly appointive but without legislative
American Administration, 1 787-1902 573
powers, the applicable provisions of the laws of Oregon
being declared by the Act to be in force in the District.
This form of government was continued by the Act of
19CO, providing a code for the District.
By Joint Resolution of July 7, 1898, it was provided:
That the Hawaiian Islands and their dependencies be and
they are hereby annexed as a part of the territory of the
United States, and are subject to the sovereign dominion
thereof.
By this Resolution it was also provided :
That until Congress shall provide for the government of
such Islands, all the civil, judicial, and military powers exer-
cised by the officers of the existing Government in said Islands;
shall be vested in such person or persons, and shall be exer-i \/
cised in such manner as the President of the United States'
shall direct; and the President shall have power to remove
said officers and fill the vacancies so occasioned.
By the Act of 1900, Hawaii was given a Territorial
form of government.
Various provisions having been made in the treaties
prior to 1898 by which territory was ceded, concerning
the rights of the inhabitants, some of which had led to a
claim, by the people of the dependencies in the ceded
regions, of a right to be admitted as Member-States of
the American Union, this possibility was carefully guarded
against in the treaty of cession from Spain of December
10, 1898, following substantially the provisions in the
treaty with Russia of 18^7 ceding Alaska, by a provision
which read as follows : '^
The civil rights and political status of the native inhabitants
of the territories hereby ceded to the United States shall be
determined by Congress.
574 The Administration of Dependencies
By the Act of igcx), the Island of Porto Rico was given
a Government, under an appointed Governor and Council
and an elected House of Representatives, with full powers
of local legislation. The Act was so worded as to make
it impossible for a claim to be made under it that the
American Union was under any obligation to Porto Rico
to admit that dependency into the Union.
^ On April 7, 1900, a Philippine Commission of five
members was appointed by the President, without au-
thority of any Act or Resolution of Congress, which was,
by the Instructions accompanying the President's com-
mission, given the following powers, among others :
Beginning with the ist of September, 1900, the authority to
exercise, subject to my approval, through the Secretary of
War, that part of the power of government in the Philippine
Islands which is of a legislative nature is to be transferred
from the Military Governor of the Islands to this Commission,
to be thereafter exercised by them in the place and stead of
the Military Governor, under such rules and regulations as
you shall prescribe, until the establishment of the Civil Central
Government for the Islands ... or until Congress shall
otherwise provide.
The Instructions required the Commission to admit the
natives to as large a share in the Government as possible,
provided for putting the Civil Service of the Islands under
proper regulations to insure expertness, enjoined legisla-
tion conforming as far as practicable to the customs, habits,
and prejudices of the people, and authorized the isolation
of uncivilized tribes under their tribal governments.
By Act of Congress of March 2, 1901, it was provided:
All military, civil, and judicial powers necessary to govern
the Philippine Islands, . . . shall, until^otherwise pro-
vided by Congress, be vested in such person or persons and
shall be exercised in such manner as the President of the
American Administration, 1 787-1902 575
United States shall direct, for the establishment of civil gov-
ernment and for maintaining and protecting the inhabitants
of said Islands in the free enjoyment of their liberty, property,
and religion: Provided^ That all franchises granted under the
authority hereof shall contain a reservation of the right to
alter, amend, or repeal the same.
Until a Permanent Government shall have been established
in said Archipelago, full reports shall be made to Congress, on
or before the first day of each regular session, of all legislative
acts and proceedings of the Temporary Government instituted
under the provisions hereof; and full reports of the acts and
doings of the said Government, and as to the condition of the
Archipelago and of its people shall be made to the President,
including all information which may be useful to the Congress
in providing for a more permanent Government: Provided^
That no sale or lease or other disposition of the public lands
or the timber thereon or the mining rights therein shall be
made: And provided further^ That no franchise shall be
granted which is not approved by the President of the United
States, and is not in his judgment clearly necessary for the
immediate government of the Islands and indispensable for
the interest of the people thereof, and which cannot, without
great public mischief, be postponed until the establishment
of permanent civil government; and all such franchises shall
terminate one year after the establishment of such permanent
civil government.
The actual condition of affairs with respect to the
Philippine Islands, therefore, is that Congress has tempo-
rarily withdrawn from the habitual and constant control
and has recognized that the President is, for temporary
and special purposes, the proper representative of the
United States in exercising the Imperial power and per-
forming the Imperial obligations. It exercises the power i ^
of superintendence, and claims the power to substitute
itself at any time for the President in the habitual and
constant exercise of the Imperial power.
576 The Administration of Dependencies
As the President exercises all his powers through Sec-
retaries or Secretarial Boards, it is important to ascertain
the Executive Departments in whose charge the business
of the relations with the dependencies has been since the
adoption of the Constitution.
Until March i, 1873, the relations with the Territories
were in the charge of the Secretary who is called the
Secretary of State, but who is really the Secretary of
State for Foreign Affairs, upon whom some of the func-
tions of the Secretariat for Home Affairs were imposed
in the year 1789, for special reasons which no longer exist.
The Secretariat was originally created as the Secretariat
for Foreign Affairs and the name was changed when the
special duties were added. The dependencies were thus
treated as "foreign States ** and their affairs as "foreign
affairs," to quote the language of the original Act creat-
ing this Secretariat.
On March i, 1873, by Act of Congress, all powers and
duties in relation to the Territories "that were, prior to
March i, 1873, by law or custom exercised and performed
by the Secretary of State " were transferred to the Secre-
tary of the Interior.
The Secretary of the Interior has charge, under this
statute, at the present time, of the relations with the
continental Territories, including Alaska, with Hawaii,
y and, under special statutes, of some of the relations with
Porto Rico.
As matter of fact, the relations between the Ameri-
can Union and the Territories seem to have been almost
entirely neglected until a very recent period. The ap-
pointed Governors and Secretaries have regarded them-
selves as responsible entirely to the people and the
elected Senate and House of Representatives of the re-
spective Territories, and the delegate in Congress, with
the power to debate but not to vote, has been recognized
as the link between each Territory and the Union. At
American Administration, 1 787-1902 577
the present time Governors of Territories report to the
Secretary of the Interior, and their reports are laid before
the President and Congress.
Upon the establishment of the Secretariat of War in
1789, the relations with the Indians were placed in charge
of this Department. In 1832, by Act of Congress, a
permanent Under-Secretariat in this Department for this
purpose was created, in charge of a ** Commissioner for
Indian Affairs" who was to have "the direction and
management of all Indian affairs, and of all matters
arising out of Indian relations" and was obliged to act
"under the direction of the Secretary of War and agree-
ably to such regulations as the President may, from time
to time, prescribe." The propriety and necessity of leav-
ing the habitual and constant charge of the relations
with the Indian tribes in the hands of the President was
thus recognized. In 1849, ^Y -^.ct of Congress, "the i<
supervising and appellate powers exercised by the Secre-
tary of the War Department " over the Commissioner for
Indian Affairs were transferred to the Department of the
Interior, where they still remain.
The relations of the American Union with the Philip- I/,
pines are still in the charge of the War Department, in i
which there has been established a Division, called thei
Division of Insular Affairs, having the immediate direc-
tion of affairs.
In its theory, as declared by the Supreme Court, and
in its practice, as shown by the action of Congress and
the President, therefore, the American Union is daily
recognizing itself as an Imperial State performing Im-
perial obligations and exercising Imperial power over
external States. The American Federal Empire is a
fact, and will remain a fact. It remains, therefore, to
ascertain its Imperial obligations.
CHAPTER XXVII
IMPERIAL OBLIGATIONS
ASSUMING it to be granted that the people and
lands of the American Union and the people and
lands of its dependencies constitute a Federal
Empire, and that the people of the American Union, by
their written Constitution consented to by all the people
of the Empire, have divided the governmental power
under an unwritten Constitution, so that the Union is
the Imperial State as respects the dependencies, stand-
ing in a federal and contractual relation to them, and
having neither unconditional nor unlimited power over
them, but only a power of disposition, — which implies
adjudication as a prerequisite, and in which is included
the power to execute its adjudications by all needful rules
and regulations, — it becomes important to attempt to
■
ascertain the obligations which, in this view, are imposed
upon the American Union and its people.
The first obligation undoubtedly is that the two
great instrumentalities of government — the Senate and
House of Representatives, together constituting the
Congress (the President participating in the action of
Congress only as a Committee of Revision with power to
compel reconsideration, but not to nullify its action),
and the President, acting separately and apart from the
Congress — shall be properly related to each other in the
exercise of the Imperial power.
Considering, first, the question of the propriety of at-
tempting to administer the dependencies wholly through
578
Imperial Obligations 579
the instrumentality of the Congress, it is to be noticed
that, if such were the habitual and constant method of
administration, it would amount, when viewed from the
standpoint of the dependencies, to habitual and constant
administration by an oligarchy of foreigners. If the
oligarchy were composed of a small body of men, having
a unity of view and interest, and familiar with the local
circumstances and conditions of the dependencies as well
as with those of the Union, such a body might be, per-
haps, a very proper and effective instrumentality for the
performance of the national trust. As a matter of fact,
however, the Congress is not a small but a large body ;
it has not a unity of view and interest, but is always
divided into at least two great parties, and always repre-
sents local interests, many of which are opposed not only
to the interests of the dependencies, but to the interests
of each other ; its members are elected primarily for the
protection of local interests, secondarily for the protec-
tion of the interests of the whole Union, and lastly, when
these interests have been protected, to protect the inter-
ests of the dependencies. With the best and most honest
intentions in the world, a man elected to the Senate or
House of Representatives is under a pressure to protect
the local interests and the interests of the whole Union,
which makes it impossible for him to place the interests
of the dependencies on anything like an equality with
the other interests.
Moreover, a large body of men is, in the nature of
things, disqualified from determining questions where
the facts are complicated and are not facts of common
knowledge. The theory of legislation is that the mem-
bers of the Legislature are familiar with the facts, and
that they deliberate simply concerning the rule to be ap-
plied to established facts. Congressional committees in-
vestigate facts, but such investigations are properly for
the purpose of settling disputed or doubtful questions of
580 The Administration of Dependencies
fact, and not for the purpose of investigating facts con-
cerning which no knowledge can be had except by a
process of investigation. The administration of depen-
dencies, however, requires a continuous investigation of
facts, concerning which the members of the Senate and
House of Representatives cannot, in the nature of things,
have a knowledge as a part of their common and daily
experience. For the Congress, therefore, to attempt to
act as the representative of the American Union in the
fulfilment of its continuous daily and hourly duties,
would require it to sit continuously and to be continu-
ously investigating new facts through its committees.
There are therefore, obviously, serious objections grow-
ing out of the character and composition of the Congress,
to the proposition that the American Union can habitu-
ally and constantly administer its dependencies through
the instrumentality of Congress.
/ There are, likewise, serious objections against placing
j the habitual and daily administration of the dependen-
•, cies in the hands of the President. The President him-
self is elected by a party, and is likely to be swayed by
partisan considerations; he may or may not have a per-
sonal knowledge of the local circumstances and condi-
tions in the dependencies; and he may or may not have
the capacity of investigating and digesting facts. Further
than this, to allow one man, free from supervision and
control, to adjudicate the unwritten Constitution of the
American Empire and to legislate in execution of his
adjudications, even though all the people of the Empire
should consent and agree to this, would be to subject the
President to a temptation to convert his conditional and
limited power into a power practically unconditioned and
unlimited, and, judging from history, the temptation
would not be withstood.
When the objections to the administration of depen-
dencies by the Congress or by the President are sum-
Imperial Obligations 581
marized, it thus appears that the objections to adminis-
tration by Congress are really objections to the habitual
and daily exercise of power for this purpose. Congress
can occasionally and in matters of great importance in-
vestigate by its committees facts which are wholly out-
side of common knowledge, and can decide upon those
facts, and when the matter is of sufficient importance so
that it can afford to give the time necessary to ascertain
all the facts and so that the matter may be debated and
deliberated, the Congress can give a decision which will
be judicious and adequate. The Congress is, there-
fore, a body admirably adapted for the purposes of gen-
eral superintendence. A superintending body interferes
with the agent body only occasionally, and for the pur-
pose of keeping the agent body within its limits and of
compelling it to perform the conditions under which it
acts, but when the superintending body acts, its action
is final and supersedes and nullifies all contrary action
of the agent body.
On the other hand, the objections to administration of
the dependencies by the President are really objections
to his acting without supervision and control by a super-
intending body. Because the Presidential ofBce is vested
in one man, the President is qualified to act as the habit-
ual and daily administrator of the dependencies. The
President, and his assistants, are continuously in the per-
formance of governmental duties. Matters requiring im-
mediate action can receive his immediate attention. He
can be supplied, or can supply himself with expert investi-
gators and advisers on every subject, who will be able
to apply themselves continuously to the work. Con-
gress can give these expert advisers power to compel the
giving of testimony, and to make personal investigations
in any part of the world and may require them to
preserve the records of their investigations. The very
functions which the Congress is least qualified to perform
582 The Administration of Dependencies
in the administration of dependencies, the President, as-
sisted by expert investigators and advisers, is able per-
fectly to perform.
It seems, therefore, to be indicated from the very na-
ture of things that the habitual and daily administration
of the dependencies of the American Union should be
in the charge of the President, assisted by expert in
vestigators and advisers, and that the superintendence
and final control of the administration should rest with
the Congress, subject only to the final judgment of the
whole people of the American Union, expressed at the y
polls.
If the subject is examined from the standpoint of ex-
pediency, the same result is reached, — that the habitual
and daily administration of the dependencies should be
in the charge of the President, and that the Congress
should exercise the power of superintendence. Since the
administration of dependencies is, in the last analysis,
nothing more or less than the performance of a trust
which the American Union and its people are under obli-
gation both to adjudicate and to execute, the general
principles which are applicable to the administration of
private trusts must be also applicable in this case. Ex-
perience teaches that there are three conditions which
are likely to lead to the maladministration of trusts —
division of responsibility between the trustees, a failure to
require records to be kept of all action under the trust,
and a failure to make provision for coherency and con-
tinuity of administration.
There is a division of responsibility when any one of
several trustees is authorized to act, and it is left uncer-
tain whether or not his action binds the others, or when
a trustee acts without certainly binding his successors.
If Congress were to attempt to habitually and continu-
ously administer the dependencies, there would certainly
be a division of responsibih'ty among the trustees of the
Imperial Obligations 583
national trust. As one party succeeded another and one
Congress succeeded another, each would disclaim respon-
sibility for the actions of its predecessor. A political
party has no definite corporate form, and it is hence ex-
tremely difficult to fix the responsibility for a party
measure. When a party goes before the people in a
popular election, the issues which immediately affect the
welfare of the American Union are likely to be control-
ling and the issues affecting the dependencies only sub-
sidiary. The habitual and constant administration of the
dependencies by the President concentrates the responsi-
bility for every act, in the first instance, upon him. All
persons or communities claiming to have been injured in
the administration of the trust know exactly to whom to
apply for redress. If Congress were to act as a superin-
tending body to supervise and control the action of the
President, this would not operate to divide the responsi-
bility in the sense in which that expression is used. If it
is agreed by all parties concerned that one trustee shall
act habitually and constantly and the other superintend
and control his action, there is no division of responsi-
bility. The trustee who acts habitually and constantly
is subject to have his acts nullified by his co-trustee ; but
if the co-trustee fails to nullify them within a reasonable
time, he ratifies them, and both become jointly responsi-
ble. The method of dividing the functions of the trus-
teeship between an acting trustee and a superintending
trustee is one frequently adopted for the very purpose
of more firmly fixing the responsibility for action. A
superintending trustee who should not nullify an act
done by the acting trustee which was in violation of the
trust would be held as strictly, if not more strictly, re-
sponsible than if he had investigated the act of his co-
trustee and had approved it. The requirement of good
administration of trusts that there should be no division
of responsibility is, therefore, complied with if the Presi-
584 The Administration of Dependencies
dent is recognized as the habitual and constant adminis-
trator and Congress the superintending administrator.
If Congress were to be regarded as the habitual and
constant administrator of the dependencies, there would
be no possibility of keeping accurate records concerning
the performance of the trust which would be in such
shape that they could be easily referred to and under-
stood. It is quite possible for a trustee to maladminister
a trust who allows every one to be familiar with all his
acts of trusteeship as they occur. If he keeps no records,
he is almost certain to maladminister the trust, however
good his intentions. The action of Congressional com-
mittees, though open to the public, is rarely digested and
recorded so as to be convenient for future reference, and,
in the multitude of affairs and the haste with which they
must be disposed of, it is impossible to keep careful and
systematic records. On the other hand, systematic
records of the action of the President in the habitual ad-
ministration of dependencies could be kept, and thus
every act of importance exposed not only to the public
criticism of the moment, but to the public criticism of
the future. Nothing tends to good administration
equally with the necessity of making an immediate record
of every act as it occurs, for public inspection and
criticism.
The requirement of coherency and continuity of ad-
ministration can, it would seem, never be attained, should
Congress undertake the habitual and constant adminis-
tration of the dependencies. As the exponent of party
government, its policy must inevitably change with the
change of parties. Proceeding, as it inevitably must,
without adequate record of past action and without the
opportunity for the patient and slow investigation of
complicated facts, each act will stand separate and apart
from all previous acts, and will represent only the result
of the combined common sense of the particular Con-
Imperial Obligations 585
gress, applied to such facts as it may happen to have be-
fore it. On the other hand, it is possible to establish an
advisory tribunal to assist the President in his habitual
and constant administration of the dependencies, which
shall be entirely free from the control of party govern-
ment and which shall act only after careful investigation
of all the facts and keep a record of its investigations and
conclusions which can be readily referred to at any time
in the future. If coherency and continuity of adminis-
tration are essential to good administration of depen-
dencies, it seems obvious that the habitual and constant
administration of them should be vested in the President.
On this subject, perhaps no one is better qualified to
speak than M. Paul Leroy-Beaulieu, the great traveller
and student of colonial economic and political problems.
He regards this feature of the administration of depen-
dencies as the most important of all. The final words
of his great work, De la Colonisation chez les Peuples
Modernes, of which the fourth edition was published in
1 89 1, are these:
It is necessary to bring to this work of the State a great
store of reflection and intelligence, much moderation, a pro-
found sentiment of justice, and above all a high regard for
coherency and continuity in the administration (et surtout
beaucoup d ^esprit de suite). It is a part of the duty of the
State to set itself the task of establishing its political direction
and control in such manner as to interfere as little as possible
with native populations, in such manner as to change them
gradually, in such manner that their rights will be respected
and wars with them will be avoided.
The relation of the Imperial State to its dependencies
is, however, as has been shown, not a mere relationship
of trusteeship. It is at the same time a trustee, and the
Chancellor which finally adjudicates the terms of the
trust. It needs no argument to show that a great body
586 The Administration of Dependencies
of elected representatives is incapable, in the very nature
of things, of adjudicating the terms of a private trust
which is left indistinct and indefinite as respects the
means and instrumentalities which the trustee is to use
and even in respect to the end and purpose of the whole
trust. It is equally incapable, in the nature of things, of
adjudicating the terms of a public trust of this kind. It
is one thing, however, to adjudicate the terms of such a
trust, and quite another and different thing to revise,
occasionally, the adjudications made concerning the
terms of the trust, by some other tribunal. One may
successfully superintend a work who has not the technical
knowledge sufficient to enable him to solve the habitual
and constant problems which are arising in the execution
of the work. Moreover, many of the great problems
arising in the administration of dependencies are incapable
of any solution which can be absolutely said to be correct,
and such problems have to be solved according to the
educated public sentiment of the whole people of the
American Union, with respect to which Congre&s is pe-
culiarly qualified to speak.
From whatever standpoint, therefore, the matter is
viewed, it seems to be logically indicated that the Presi-
dent should be the representative of the American Union
in the habitual and constant performance of its Imperial
obligations, and that the Congress should represent the
Union in the performance of these same obligations as
the superintendent of the President. Such an arrange-
ment has no tendency whatever toward monarchy, heredi-
tary or temporary. All power in the Empire is recognized
as emanating from all the people of the Empire, who
have selected a part of themselves to form an Imperial
State which is the Disposer of the affairs of the Empire,
and who have divided all governmental power in the
Empire between the Imperial State and the remain-
der of the people of the Empire recognized as States
Imperial Obligations 587
formed according to natural circumstances and conditions.
All power exercised by the American Union, when acting
as the Imperial State, is regarded as emanating directly
from all the people of the Union, and indirectly from all
the people of the Empire. The President acts primarily
as the representative of all the people of the Union and
secondarily as the representative of all the people of the
Empire. Because the trust which he performs is one re-
quiring continuity and coherency of action, it does not
follow that the person who occupies the office of Presi-
dent may not be changed as often as the people see fit.
It is only necessary that the President's advisory body,
which has the active charge of the administration in be-
half of the President, should not change with the
President.
If it be the fact, as it seems to be, that the tendency
in all States which are engaged to-day in the administra-
tion of dependencies is toward placing the immediate
and daily charge of them in the hands of the Chief Ex-
ecutive of the Imperial State, this action is due to the
fact that the enormous trust undertaken can, according
to the enlightened opinion in those States, based on
experience, be performed only in this manner.
If it be granted that the trust, in order to be well per-
formed, must be placed in the immediate and direct
charge of the President, subject to the supervision and
control of Congress, the question of the administration
of dependencies becomes simply one of securing an ex-
pert administration by the President ; and as the Presi-
dent must necessarily act through subordinate advisers
and officials, the question becomes one of securing ex-
pert official action and expert advice.
In ascertaining the icharacter of the public office which
ought to have charge of the administration of the depend-
encies, it is necessary, of course, to consider the nature
of the duties performed by this office. At the present
588 The Administration of Dependencies
time» it is recognized that all the duties of the public
offices of the American Government having charge of
the administration of affairs in time of peace are divided
between various Cabinet officers, all of whom may be
classified as falling into two great Departments — the
Department for Home Affairs and the Department for
Foreign Affairs. The duties of an office which should
be charged with the administration of dependencies
would be entirely different from the duties of either the
Home Office or the Foreign Office. The Home Office
is concerned with carrying out the commands of the
Constitution and the Congress relating to home aflairs,
and the Foreign Office in making treaties and contracts
with foreign States. The Office having charge of the
administration of the dependencies — the Imperial Office
— would have the function of executing the trust assumed
by the American Union towards distinct external States
standing in a permanent and constitutional relationship
toward the Union. The function of the Imperial Office
— the Department for Imperial Affairs — would therefore
be entirely different from the function of either of the
other great Departments. The Imperial Department,
therefore, should be entirely distinct from all other De-
partments.
Considering the nature of the duties of the Office — the
performance of a trust — it would seem that it should be
vested in a single Secretary of State rather than in a
Secretarial Board, though this would be a matter to be
determined by expediency as experience would dictate.
The Secretary of State for Imperial Affairs would, of
course, be the President's representative, and the advisory
Council would, of course, be attached to the Imperial
Office ; and the Imperial Secretary would act, or would
advise the President or the Congress regarding action,
only after consultation with the Imperial Council, in the
same way as the Secretary of State for India in Great
Imperial Obligations 589
Britain acts only after advising with the Council for India,
the Minister for the Colonies in France after advising
with the Conseil Sup&ieur des Colonies, and the Imperial
Chancellor, in Germany, acting as Minister for Foreign
Affairs and ex officio as Minister for the Colonies, after
advising with the Kolonialrath.
How such an Imperial Council should be composed,
what should be the term of ofBce of its members, whether
it should be so constituted that its membership should be
changed gradually, and other questions of like nature,
are matters of expediency which are beyond the scope of
this work. The general principles upon which the
Council should be constituted are, it would seem, first,
that it should always contain persons expert in the gen-
eral art of government, persons expert in the science of
the administration of dependencies and persons actually
familiar with local circumstances and conditions in the
dependencies, and second, that it should be so consti-
tuted as to be removed as far as possible from the in-
fluence of party politics.
The placing of the immediate and daily charge
of the administration of the affairs of the depend-
encies in the hands of the President advised by a
Council of experts would still leave a most important
field of operation for the Congress. It would not only
superintend and control the action of the President, but
would determine for the Union and for the Empire all
the great questions of national and Imperial policy and
would give the final ratification to those great Imperial
dispositions or settlements, by which the forms of gov-
ernment in the dependencies are established or amended,
and by which the dependencies are federated or united as
their local interests may dictate. Whenever it acted,
it would be the responsible representative of the Ameri-
can Union and the Supreme Disposer of the Empire.
It would finally adjudicate and execute the Constitution
59^ The Administration of Dependencies
of the Empire, either affirming or disaffirming, in whole
or in part, the decrees of the President. It would have
the advantage of having had the whole subject carefully
gone over by the President and his expert advisers, and
could obtain from them the facts within their knowledge
and have the benefit of their advice, in the same way
that a Supreme Court of Appeals has the benefit of the
finding of facts, the opinion and the judgment of the
court below.
The Congress, taking up occasionally, and under such
circumstances, matters of importance arising in the ad-
ministration of dependencies, would undoubtedly be able
to make as wise a disposition of them as any body of
men. Questions so presented to Congress would be pre-
sented in such a way that party politics would have the
least possible effect upon their decision. A decision by
Congress under such circumstances, even though adverse
to that of the President, would not necessarily tend to
weaken the authority of the American Union or the au-
thority of the President in the dependencies.
As the trust assumed by the American Union towards
its dependencies includes the duty to recognize their state-
hood to the utmost extent possible, it necessarily follows
that all Local Governments of the dependencies, except
so far as they are elected by the people of the depen-
dencies, are to be regarded as Substituted Governments
or Trustee Governments. All the officials in the depen-
dencies appointed by the American Union are responsi-
ble to the people of the dependency as cestuis que trustent,
and to the American Union as the Disposer and Chancel-
lor of the Empire. All the acts of the Local Government
are to be done for the benefit of the people of the de-
pendency. A Local Government substituted for a Local
Government emanating from the people of the depen-
dency stands exactly in the position of a conservator of
a private individual. It is no more the duty of such
Imperial Obligations 591
a Substituted and Trustee Government to act for the
benefit of the American Union than it would be for a
conservator to act for the benefit of the Chancellor before
whom he must render an account. Collusion between
the American Union and such a Substituted and Trus-
tee Government to obtain any part of the property of the
people of the dependency would be equally as immoral
and culpable as collusion between the Chancellor and
the conservator of a private individual to procure for the
Chancellor a part of the property of the individual under
guardianship.
In the Federal Empire, the Governor of a dependency,
alone in the Local Government, exercises inconsistent
functions. He is at once responsible to the people of
the dependency, and the Vice-Disposer and Vice-Chan-
cellor representing the American Union. This, however,
is nothing novel, as the Chief Executive must, in every
State, exercise inconsistent functions and harmonize
them all toward a common end.
The form of government in dependent States of a
Federal Empire may be republican, monarchical, or
oligarchical. In such case, the function ordinarily ex.
ercised by the Governor of a dependency would be
divided between two personalities. The local elective
Governor or the local monarch or the local oligarchy
would exercise the powers of the local Chief Executive,
and an Imperial Governor would guard the Imperial
interests.
While the system of administering the dependencies
through the President advised by an Imperial Council,
under the supervision and control of Congress, is obvi-
ously applicable to the administration of the Territories
of the United States (by "Territories" meaning the ad-
jacent dependencies on the North American Continent
destined by nature for incorporation into the American
Union), there are many reasons of expediency for not
592 The Administration of Dependencies
applying it. Congressional government of the Terri-
torieSy to the exclusion of administration by the Presi-
dent, has been a fact for nearly a century. The
Territories have been treated as outlying municipalities
of the Union under a regime of assimilation to the
utmost extent possible, and have accepted this regime
because it was accompanied by the promise of member-
statehood in the Union. Congressional government
has, however, consisted in establishing a form of gov-
ernment under an express or implied promise of ulti-
mate statehood in the Union and then allowing the
Territory to grow up substantially in its own way and
according to its own will. Under the circumstances, this
policy has perhaps worked as well as any, but the fact
that it has worked well would seem to be due to the cir-
cumstances, rather than to any virtue in the plan itself.
The problem of administering the Territories of the
United States, until the acquisition of Alaska in 1867,
was presented in the very simplest form in which a prob-
lem in the administration of dependencies could possibly
arise. A marvellously rich country lying on the frontier
of^ the Union, unoccupied except by wandering tribes
(which have very properly been restricted within cer-
tain territorial limits under their tribal governments
until such time as they shall be suited for incorporation
into the population of a State of the Union) was
colonized without difficulty by the population of the
Union. Nothing was required of the Union except to
fix the boundaries of new States and to prescribe the
forms of government adapted to the population of the
Territory as it should gradually grow towards statehood
in the Union. The principal thing to be done was to
incorporate these continental Territories into the Ameri-
can Imperial Tariff-Union, and to compel them otherwise
to contribute equally to the common defence and welfare
by taxation, which, on account of the peculiar circum-
Imperial Obligations 593
stances, it was right and proper to make uniform with
similar taxation in the States of the Union. These
Territories, being not only under promise of statehood,
but under compulsion to become States of the Union
whenever the Union saw fit, could properly be treated,
in return for this privilege and in consideration of this
necessity, as being under the sole control of Congress,
even though this resulted in their being taxed according
to the mere will of a legislative body in which they were
not represented.
Where statehood in the Union for a dependency is
doubtful, or where such statehood is certain to be denied
and must be denied, in the nature of things, out of mere
justice to the dependency, Congressional administration
of the dependency loses its sole justification. To ascer-
tain the duty of the American Union towards such a
dependency, it is necessary to put ourselves in the place
of the dependency by studying the actions and thoughts
of our Revolutionary ancestors when they were inhabi-
tants of dependencies of the State of Great Britain, and
to supplement this study by an examination of the theory
and practice of those who have had to meet similar prob-
lems.
All the insular dependencies of the Union and Alaska
are probably destined never to be incorporated into the
Union as States, because it is best for them and for the
Union that they should permanently remain in a rela-
tionship of dependence on the Union. In the latter re-
lationship, they can properly have a higher degree of
statehood than in the former. Under a well-balanced
and expert administration by the American Union, as
their Imperial State, they can have that distinct com-
munity life which their isolated position makes necessary.
With respect to them, an Imperial Department of the
Government of the Union, and an Imperial Council, so
arranged as to form and maintain a proper balance
38
594 The Administration of Dependencies
between the interests of all parts of the American Empire
and to skilfully adjust the constantly changing relations,
is, according to American traditions, a necessity. With
respect to them, the work of administration must be done
by the President and his advisers, as the expert part of
the Government of the American Union, under the
superintendence of Congress.
It must be expected that the inhabitants of these de-
pendencies will, if Congressional government is pushed
too far, follow the precedent established by the American
Colonies in the time of the American Revolution and
insist that they are States naturally free and equal with
other States, that they are in a federal union with the
American Union, that Congress is not their Supreme
Legislature, and that their connection with the Union is
through the President. It will apparently be the part
of wisdom for the American Union to forestall such a
state of things by adopting the theory of Dickinson and
Lord Chatham and recognizing the President, advised by
a Secretary of State for Imperial Affairs and an Imperial
Council composed of statesmen and men familiar with
colonial affairs, as the habitual and constant administrator
of the dependencies, and the Congress as the "august
body" or great Interstate Tribunal of the Empire to
which the insular and remote dependencies may look for
a general superintendence of the affairs of the American
Empire.
The District of Columbia, as has been already no-
ticed, stands in an entirely different relation to the
Union from any other dependency. By the express pro-
vision of the Constitution, the power of the Union over
the District is declared to be a power "to exercise ex-
clusive legislation in all cases whatsoever" — that is, to
exercise the power of legislation, subject to the restric-
tions of the Constitution of the United States, to the ex-
clusion of any other Government whatever. The Union,
Imperial Obligations 595
therefore, exercises over the District exactly the power
which the State of Great Britain, in the Act of 1766,
claimed to have the right to exercise over the American
Colonies, subject to the restrictions of the Constitution.
The District of Columbia, therefore, has no inherent
right of statehood, and not even an inherent right of local
self-government. Though the inhabitants are protected
in their individual rights by the Bill of Rights in the
Constitution, their political rights are only such as the
Congress may see fit to bestow upon them.
It does not follow, however, that the Congress has
the moral right to assubjectize the inhabitants of the Dis-
trict to its own mere will, as respects their political status*
They are entitled morally to all political rights not incon-
sistent with the welfare of the Union. The object of the
framers of the Constitution, as the debates in the Conti-
nental Congress during the years 1783 and 1784, and in
the Constitutional Convention show, was to prevent the
action of Congress from being confused with or influ-
enced by the politics of any city or State in the Union*
The politics the effect of which was thus guarded against
were the politics arising from local elections of the legis-
lative and executive officers by popular vote, which in-
volved party government and intense partisan feeling.
The inhabitants are morally entitled to as much control
over the local affairs of the District as it is possible for
them to have without popular elections. The only alter-
native which can justly be applied when popular govern-
ment is impossible is, as has been seen, expert government.
The present form of government, according to which
Congress, advised by its Committee for the District of
Columbia, composed of members of both the Senate and
the House, acts as the Legislature of the District, and by
which three commissioners act as the Executive, is avast
improvement over all previous forms of government, ac-
cording to which the lands and inhabitants of the District
59^ The Administration of Dependencies
were first divided into municipalities with elective Govern-
ments, and afterwards were made a Territory with an
appointed Governor and Council and an elected House of
Representatives. Any change in the present arrange-
ments will doubtless not be in the direction of making
the Government in any respect elective, but in the direc-
tion of recognizing that the habitual and constant charge
of the District ought to be in the hands of the President,
acting through a Cabinet officer, to whom the present
Board of Commissioners shall be an Executive Council,
and to whose office there shall be attached a Legislative
Council, composed in part of members of the Senate and
House, appointed by Congress, and in part of inhabitants
of the District appointed by the President, which shall
have the power of local legislation for the District, subject
to the negative of the Secretary or the President, and
subject at all times to the superintending power and
supreme legislative authority of Congress.
In what has been said will be found the answer to the
question. How, under an unwritten Constitution of the
Federal Empire, can the private rights of the inhabitants
of the dependencies be protected against the exercise of
the Imperial power? As the Imperial power in the Fed-
eral Empire is itself essentially a power of adjudication
and not a power of legislation, every act implies an ad-
judication in which private rights are considered and re-
spected. In making such adjudications every provision
of the Constitution of the United States which protects
private rights is regarded as literally in force in the de-
pendencies when the local circumstances and conditions
of the American Union and the dependency in question
are the same as respects the matter under consideration,
and as in force to the utmost extent practicable under all
circumstances and conditions.
But if this is regarded as an insufficient protection of
private rights, it is possible to institute a Council of
Imperial Obligations 597
Revision for all action of the President or the Secretary
for Imperial Affairs in Council, or of Governors of de-
pendencies in Council, which is claimed to violate private
rights. Such a Council of Revision ought, of course, to
be in possession of all the facts on which the Imperial
Council acts, and therefore its members ought to be also
members (and the most learned and judicious members)
of the Imperial Council — in a word, the Council of Re-
vision to hear private causes arising under the Constitu-
tion of the Empire ought to be a Judicial Committee of
the Imperial Council.
If the effect of the provision of the Constitution relat-
ing to the administration of dependencies is, as it seems
to be, to give the Supreme Court jurisdiction of causes
arising under the unwritten Constitution of the Empire,
because such causes are at the same time causes arising
under the Constitution of the United States — the Gov-
ernment of the American Union being responsible both
to the people of the American Union and the people of
the American Empire to "dispose of and make all need-
ful rules and regulations respecting " the dependencies —
an appeal would lie, as, of course, in private causes, from
the Judicial Committee of the Imperial Council to the
Supreme Court of the United States. As the juris-
diction of all the Courts of the United States except the
Supreme Court, in cases arising under the Constitution
of the United States, exists at the will of Congress, all
jurisdiction of cases arising both under the Constitution
of the United States and the Constitution of the Empire
should, it would seem, be denied to all the inferior courts
of the United States, so that all private causes arising
under the Constitution of the Empire may be decided by
Imperial Councils, subject only to the revisory power of
the Supreme Court of the United States.
The two other questions of the administration of de-
pendencies which are particularly under discussion at the
Imperial Obligations 599
Presumptively it would seem that a dependency in a
Federal Empire is entitled, as a necessary incident of
its member-statehood in the Empire, to its own tariff,
which it ought, however, to modify in the interests of
its related States, so far as practicable.
Applying the principles of the Federal Empire to the
solution of the question concerning the contributions of
the different parts of the Empire to the Imperial defence
and welfare, many of the difficulties surrounding this
question as it has been heretofore discussed, disappear.
The Imperial State in the Federal Empire renders ser-
vices for the dependencies which are not only difficult
and dangerous in themselves, but which are necessary for
the peace and welfare of the whole community and in-
volve a continuous and immediate outlay of money for the
benefit of the dependencies. With the economic aspect
of the question, this work is not concerned. Economic
benefits, if they accrue at all from the possession of colo-
nies, accrue to individuals, and the benefit to the Imperial
State is only indirect. Putting aside, therefore, all ques-
tion of economic benefits, the question arises, how shall
the services of the Imperial State in giving the dependent
States physical protection against external interference,
in providing them with honest and stable Governments
when they are unable to provide themselves with such
Governments, and in equalizing commercial conditions
between the different parts of the Empire and between
the Empire and foreign nations, be compensated?
The American Union is not bound by tradition or
otherwise to the proposition that it cannot adjudicate the
proportional contributions which the different parts of
the American Empire shall make to its support, or to the
proposition that it cannot enforce such adjudications by
process of execution. It is simply committed to the prop-
osition that it cannot tax dependencies by the action of its
own legislative body, acting according to its mere will.
6oo The Administration of Dependencies
If, therefore, the American Union accepts the theory
for which the American Colonies fought in the Revolu-
tion, and admits its power over the dependencies to be
only a power of disposition, it may adjudicate the con-
tributions of the different parts of the Empire along with
all other matters of Imperial administration, and should
it ever become necessary to enforce the payment of such
just and reasonable contributions from any part of the
Empire, the American Union would be not only justi-
fied, but morally obligated to enforce such contribution.
It is undoubtedly true that in making such adjudica-
tions, the American Union would be, as Burke said, "a
judge in its own cause." It would, however, be a judge
in its own cause from the necessity of the case. That it
should judge in such a case, therefore, could not be
charged to it as a wrong act. Where one is obliged to
judge in his own cause, such obligation increases enor-
mously the moral responsibility. It necessitates the re-
duction of every question which must be so decided to a
cold, dry, and scientific basis to the very utmost extent
possible. If all questions arising in the administration
of the dependencies are in fact decided on such a basis,
there is no reason in principle or in tradition why any
question should be excepted from the power of the
American Union to decide.
The Imperial obligation does not rest upon the Presi-
dent and Congress alone. The ultimate responsibility
for the proper execution of the trust is upon the people
of the American Union, and means must be provided
for educating the public sentiment so that the people of
the American Union may be in a position to superintend
both the President and the Congress. They must estab-
lish institutions for the training of youth in the science
of the administration of dependencies, for promoting the
interchange of ideas between experts and disseminating
these ideas, and for educating public sentiment on this
Imperial Obligations 6oi
subject by object-lessons, through expositions and mu-
seums. Perhaps the most important part of the Imperial
obligations is that the people should provide for the ed-
ucation of picked men to carry out the details of the
trust. Instrumentalities of government, however well
arranged, will not alone accomplish a good administra-
tion of the dependencies. A good administration of the
trust can only be given by experts, and these the people
of the American Union must continuously furnish from
their midst. t
Undoubtedly the performance of Imperial obligations
entails a constant effort by the American people. Realiz-
ing this, many persons are asking the question, Why
should the people of the American Union undertake Im-
perial obligations? They object that the exercise of the
Imperial power, under this conception of the Imperial
obligations, is not necessarily profitable from a pecuniary
standpoint. This objection is undeniably well taken.
The idea of the Imperial power as a power to perform
services for other States is wholly inconsistent with the
idea of monopoly or exploitation, as Mr. Spencer Wilk-
inson has well pointed out, in the passage above quoted.
It implies opening new markets, not for the Imperial
State, but for all the world. To the "merchants" who,
to quote Lord Bacon, "look ever to the present gain,"
it is better to let some other State exercise such Imperial
power and for America to take the benefit of the work.
But to those who do not "look ever to the present gain "
and whose eyes are set on a goal farther off and higher
up, there appears to be both a moral compulsion which
compels the American Union to perform such obligations
when they come upon them in the ordinary course of
events, and a pleasure in performing them well. The
State which shirks obligations because they are difficult
or dangerous pays the penalty of the individual who
shirks such obligations— rit sinks into insignificance.
6o2 The Administration of Dependencies
But, these considerations aside, there seems to be no
alternative. Imperial obligations impose themselves in
the very process of community life. The Federal Empire
is the outgrowth of democratic and republican principles.
The Imperial State recognizes itself as under a trustee-
ship toward every part of the whole Empire, and hence
as the delegate and representative of the dependencies,
as political persons or States. Where Imperial States
base their actions upon these principles, dependencies
which are abundantly strong enough to become inde-
pendent prefer not to do so, and weak dependencies re-
gard the relationship as one in which they can take pride
and satisfaction. Such a consent is equivalent to an
election of the Imperial State, by the dependencies, to
be their Central Government. Thus the republican prin-
ciple of representation — that all governors, whether per-
sons or States, are the agents or trustees of the governed
— is preserved. The democratic principle is preserved
because the whole conception of a State acting through
its representative Government as the Central Government
of its related political communities is impossible unless
the Imperial State is founded on democratic principles;
and because all power of the Imperial State is regarded
as emanating from a grant made by all the people of the
Empire.
The Federal Empire has arisen out of the need for
social and economic peace and for equalization of eco-
nomic conditions, exactly as Confederations and Federal
States arose. It is the only form of organism by which
the federative principle can be extended beyond the limits
of lands occupied by a homogeneous population capable
of self-government. Government of widely extended
and scattered lands and populations through representa-
tive institutions is not to be the ultimate substitute for
the administration of dependencies by Imperial States.
On the contrary, administration of dependencies by Im-
Imperial Obligations 603
penal States is the final and permanent substitute for
representative Government, wherever Government must,
in the nature of things, extend itself beyond the limits
of lands occupied by a homogeneous population capable
of self-government.
The Federal Empire is, therefore, not a temporary
phenomenon destined to disappear; nor is it a mere in-
complete form of a political organism hereafter to dis-
close itself in a complete form. It is a naturally evolved,
permanent, and complete form of political organism,
and, if it fails to preserve this form, and divides itself
into its constituent parts, this is not the result of the law
of progress, but a disintegration due to ignorance and
incapacity on the part of the people and the Government
of the Imperial State.
A State can have no higher ideal than to perform well
its obligations as the Imperial State of a Federal Empire.
To be at once both a Judge and a Ruler is to occupy the
most exalted position conceivable, and, in its possibil-
ities of territorial extent, the Federal Empire has no
limits. The Imperial State in such an Empire may judge
and control and equalize between States the most remote
possible from each other and the most diverse possible
in their languages, traditions, and interests. Its action,
always intelligent and judicious, and never going beyond
the necessity of each case, is inevitably beneficial and
makes for peace and for that better understanding be-
tween men under all circumstances and conditions which
is the basis of good-will.
That America can temporarily perform the functions
of an Imperial State toward a dependent State has been
shown in the case of Cuba. It is now necessary to prove
that that can be done habitually and constantly which
has been so successfully done temporarily and as a mat-
ter of emergency. That America will do so there can
be no doubt ; but it will be done only by hard thinking
6o4 The Administration of Dependencies
and hard work. It will not be done by despising the
experience of other nations, but by studying it and dar-
ing to follow their example where they have succeeded
in improving and elevating the peoples whose affairs they
have administered. It will not be done by those who
blindly worship the Constitution of the United States,
but by those who, with the principles of that Constitu-
tion as their foundation and their hope, shall apply them-
selves to the task of patiently evolving the unwritten
Constitution of the American Federal Empire.
INDEX
Act of Parliament, of 1750, prohibit-
ing iron mills in American Colo-
nies, 133 ; of 1751, regulating
issue of bills of credit in American
Colonies, 133 ; of 1767, suspend-
ing New York Assembly, 179 ; of
1767, imposing tariff on paints,
etc., 179, 180 ; of 1767, establish-
ing Commissioners of Customs in
American Colonies, 180 ; of 1772,
for trying in England persons
charged with crime in America,
253; of 1773, regulating issue of
bills of credit in American Colo-
nies, 253 ; of 1774, for closing the
port of Boston, 259 ; of 1774, for
regulating government of Quebec,
259
Adams, John, his anti-Imperialist
views expressed in the pamphlet,
Novanglus and MassachusetttnsiSy
280, 281
Address to the House of Commons,
of 1765, quotation from, 167, 168
Address to the King, of 1765, quo-
tation from, 166, 167 ; of 1774,
quotation from, 288, 289 ; of 1775,
quoted and discussed, 325, 326,
329-331
Address to the People of Canada, of
1774, its purpose and effect, 364,
365
Address to the People of Great
Britain, of 1774, quotation from,
288 ; of 1775, quoted and dis-
cussed, 326, 332
Administration of dependencies,
theory of, governed by view held
concerning their statehood, 8, 9
Admiralty, Courts of, in American
Colonies, 146-148
Admission to the American Union,
meaning of, 363
Agents for the Colonies, institution
and functions of, 89
Alaska, administration of, 573
Albany Congress, of 1754, suggests
American sub-Empire, 135
Albany Plan of Union, of 1754,
provisions respecting dependen-
cies in, 135-141
Algeria, in charge of French Minis-
ter for the Interior, 480 ; repre-
sented in French Parliament, 487 ;
modem views of French policy
respecting, 489
All needful rules and regulations,
meaning of, in U. S. Constitution,
462
Alsace-Lorraine, character of Ger-
many's problem respecting, 489,
490 ; administration of, by Ger-
many, 491-493
American dependencies, administra-
tion of, 537-577 ; status of the
Local Legislatures and Courts,
550-553 ; division of administra-
tion between Executive Depart-
ments, 576, 577; power of
American Union to isolate, 597,
598 ; and to adjudicate contribu-
tions to the Imperial defence, 599,
600
American Empire, planned by
Franklin, 351; declared by
French Treaties of 1778, 374-
399 ; recognized by U. S. Consti-
tution, 445-473
American Indians, ^^^ Indian Tribes.
American insular dependencies.
Presidential administration, under
supervision of Congress, neces-
sary, 593, 594
American Insurance Company v.
Canter (i Peters, 449), decision
of Supreme Court concerning
status of Colonial Judiciary, 550.
551
605
59^ The Administration of Dependencies
were first divided into municipalities with elective Govern-
ments, and afterwards were made a Territory with an
appointed Governor and Council and an elected House of
Representatives. Any change in the present arrange-
ments will doubtless not be in the direction of making
the Government in any respect elective, but in the direc-
tion of recognizing that the habitual and constant charge
of the District ought to be in the hands of the President,
acting through a Cabinet officer, to whom the present
Board of Commissioners shall be an Executive Council,
and to whose office there shall be attached a Legislative
Council, composed in part of members of the Senate and
House, appointed by Congress, and in part of inhabitants
of the District appointed by the President, which shall
have the power of local legislation for the District, subject
to the negative of the Secretary or the President, and
subject at all times to the superintending power and
supreme legislative authority of Congress.
In what has been said will be found the answer to the
question. How, under an unwritten Constitution of the
Federal Empire, can the private rights of the inhabitants
of the dependencies be protected against the exercise of
the Imperial power? As the Imperial power in the Fed-
eral Empire is itself essentially a power of adjudication
and not a power of legislation, every act implies an ad-
judication in which private rights are considered and re-
spected. In making such adjudications every provision
of the Constitution of the United States which protects
private rights is regarded as literally in force in the de-
pendencies when the local circumstances and conditions
of the American Union and the dependency in question
are the same as respects the matter under consideration,
and as in force to the utmost extent practicable under all
circumstances and conditions.
But if this is regarded as an insufficient protection of
private rights, it is possible to institute a Council of
Imperial Obligations 597
Revision for all action of the President or the Secretary
for Imperial Affairs in Council, or of Governors of de-
pendencies in Council, which is claimed to violate private
rights. Such a Council of Revision ought, of course, to
be in possession of all the facts on which the Imperial
Council acts, and therefore its members ought to be also
members (and the most learned and judicious members)
of the Imperial Council — in a word, the Council of Re-
vision to hear private causes arising under the Constitu-
tion of the Empire ought to be a Judicial Committee of
the Imperial Council.
If the effect of the provision of the Constitution relat-
ing to the administration of dependencies is, as it seems
to be, to give the Supreme Court jurisdiction of causes
arising under the unwritten Constitution of the Empire,
because such causes are at the same time causes arising
under the Constitution of the United States — the Gov-
ernment of the American Union being responsible both
to the people of the American Union and the people of
the American Empire to "dispose of and make all need-
ful rules and regulations respecting " the dependencies —
an appeal would lie, as, of course, in private causes, from
the Judicial Committee of the Imperial Council to the
Supreme Court of the United States. As the juris-
diction of all the Courts of the United States except the
Supreme Court, in cases arising under the Constitution
of the United States, exists at the will of Congress, all
jurisdiction of cases arising both under the Constitution
of the United States and the Constitution of the Empire
should, it would seem, be denied to all the inferior courts
of the United States, so that all private causes arising
under the Constitution of the Empire may be decided by
Imperial Councils, subject only to the revisory power of
the Supreme Court of the United States.
The two other questions of the administration of de-
pendencies which are particularly under discussion at the
6o8
Index
Congress of the Confederation,
power of, over the American
dependencies, 378-444 ; power of,
to negative colonial legislation,
438-440
Congress of the United States,
power of, respecting the depend-
encies, 453-473 ; objections to
administration of dependencies by,
578-580 ; as a superintending ad-
ministrator of the dependencies,
581-587
Connecticut, Charter of 1662
granted, 82 ; Charter forfeited in
1687, 84
Conseil SupirUur des Colonies^ es-
tablished in 1883, remodelled in
1S90, 480, 481
Consent of the governed, meaning
of, in Declaration of Indepen-
dence. 396-399
Constitution, British-American, of
1750, 121-127
Constitution of the British Empire,
distinguished by Edmund Burke
from British Constitution, 269 ;
also by the Continental Congress,
344, 349
Constitution of the United States,
proceedings of Convention for
framing, 445-473 ; *' extended
to" the Territories, 1850-1890,
550 ; its effect in the depend-
encies, 552-555
Constitutional protectorate, mean-
ing of, 353
Continental Congress, proceedings
of, at session of 1774, 280-293 ;
recognized by Lord Chatham's
Bill, 301 ; issues and parties at
its second session in 1775, 318-
349 ; its views concerning the
power of Parliament, 339, 340 ;
it reasons for rejecting informal
British peace overtures of 1778,
381, 382 ; rejects proposals of
British Commissioners, 1778, 384-
387.
Council for Foreign Plantations
(1660-1670), as the Imperial
Council, instructions to, 79-82 ;
instructions to, of 1670, regarding
Indian tribes, 83
Council for India, in Great Britain.
its establishment in 1858, and
functions, 511-514
Council for Trade and Plantations,
of 1672, as the Imperial Under-
Council, 83, 84
Council of Commerce, of 1650, as
the Imperial Under-Council, 75,
76 ; of 1655, as the Imperial Un-
der-Council, 77, 78
Council of State, as the Imperial
Council, 1650-1658, 75-79
Countries subject to the jurisdiction
of the United States, mentioned
in Act of Congress of 1804, 541 ;
and in Thirteenth Amendment,
566, 567
Courts of Admiralty in the Ameri-
can Colonies, 146^148
Cromwell, Oliver, appoints Council
of Commerce, as Imperial Under-
Council, 77
Crown, power of the British, over
the American Colonies, 244, 245,
264, 265, 273, 277
D
Declaration of Independence, prin-
ciples of colonial relationship un-
derlying,34i-348; not inconsistent
with an American Federal Em-
pire, 39^399
Declaration of Rights and Griev-
ances of 1774 quoted and
discussed, 283-285
Declaration of War, between Great
Britain and the American Col-
onies, in 1775, 309, 310
Declaratory Act of 1766, regjarding
the Imperial power of Great
Britain, 176-179
Delegate in Congress, Territorial,
same as Colonial Agent, 422
Department for Imperial Affairs, in
United States, proposed, 5 88
Department of Colonial Affairs
(British), proposed in 1764, 20S,
223; established 1768,498 ; abol-
ished, 1782, 498 ; re-established,
1854. 507
Dependencies, defined, 7 ; their
characteristics as possessing polit-
ical personality or not, 6-8 ; with
the Imperial State constitute an
Empire, 8, 9; first use of the
term, 108-110
Dependencies of the American
Union, propositions of 1777 re-
Index
609
Dependencies — Continued
lating to their administration, 370,
371 ; planned to arise from con-
quest m 1 776, 374 ; referred to in
French Treaties of 1778, 374-
376
Dependencies of the United States,
mentioned in Act of Congress of
1804, 541
Dependent States, American Colo-
nies so called by Sir Francis Ber-
nard in 1768, 191
Dependent upon, this expression
used in Act of October 3, 1650, 76
Dickinson, John, his pamphlet. The
Late Regulations Respecting the
British Colonies on the Continent of
America^ 157; quotation from The
Farmer's Letters^ 180-189 ; his
criticism of James Wilson*s essay,
263 ; quotation from his New Es-
say on the Constitutional Power
of Great Britain over the Colonies
in America^ ^ly-'^ll \ his recog-
nition of the Federal Empire, 279 ;
elected to the Continental Con-
gress and takes his seat, 1774,
287 ; his draft of the Declaration
on Taking up Arms, 1775, 320-
322 ; provisions relating to the
Empire in his draft of .Articles of
Confederation, 352
Dilke, Sir Charles, quotation from
his Problems of Greater Britain^
concerning an Imperial Council,
526
Dispose of, meaning of, in English
public law, 44-46
Disposition, meaning of, in French
public law, 13, 14 ; in English
public law, 39-44 ; in British
politics, 143 ; in British public
law, 295 ; used to describe the
Imperial power by the Continen-
tal Congress, 348 ; power of the
American Union over its depend-
encies a power of, 359-362, 401-
418, 458, 459 ; power of, includes
plenary power of regulation, 419-
444 ; used by Jefferson as describ-
ing the Imperial power in 1787,
431, 432 ; used to describe the
Imperial power in United States
Constitution. 458, 459 ; power of,
does not include power of aliena-
tion, 470
District of Columbia, power of Con-
gress over, under United States
Constitution, 472 ; administration
of. 5<W-596
Districts in Western region both
•' States " and ** Colonies," 423
Dominion, meaning of, 100-103
Downes v. Bidwe II (1^2 U. S., 244),
views of the Supreme Court con-
cerning the Imperial power in,
562-570
Dred Scott Case, views of the Su-
preme Court concerning the Im-
perial power in, 556, 557
Duke of York, patent of 1664 to,
83
Dulany, Daniel, quotation from his
Considerations on the Propriety of
Imposing Taxes on the British
Colonies, 153, 154
Durham, Lord, quotation from his
Report on the Affairs of British
America (1839), 502, 503
East India Company, reasons for
sending tea-ships to America in
1773. 253-257
Eddy, Charles Walter, views of,
concerning an Imperial Council,
521-523
Egerton, Hugh E., quotations from
his History of British Colonial
Policy, 36, 505, 519, 520
Elgin, Lord, declares British Em-
pire a permanent organism, 1850,
506
Elizabeth, Queen of England, her
policy respecting Parliament, 26-
28
Emperor of Germany, power of, re-
specting the dependencies, 491
Empire, definition of the modern, 8
Empire, the Federal, see Federal
Empire.
Enacting clause, of colonial laws,
117, 118
English Empire, from 1200 to 1600,
28
Expansion of the American Union,
Franklin's views expressed in his
draft of Articles of Confederation,
351
Expert government, defined, i ; im-
plies conditional power, 2 ; may
6io
Index
Expert government— C4m//MM^</
exist m any fonn of State, 2-4 ;
no modern State wholly under,
4 ; distinguished from despotic
or paternal government, 517, 518
Extension of the Constitution to the
Territories, meaning of, 554
Farmer's Letters of John Dickin-
son, quoted from, their purport
and effect, 180-189; criticisea by
William Knox, 229-237
Federal Empire, British Empire of
1750 a, 125 ; defined, 261-279 ;
principles of, announced by John
Dickinson, 1774, 279 ; the Ameri-
can ultimatum to Great Britain a
demand for restoration of, 289 ;
recognized by Lord Chatham,
I775f 308 ; theory of, stated by
Gouvemcur Morris in his Observa-
tions on the American Revolution^
391-395 ; the modem British Em-
pire essentially a, 536 ; an evolu-
tion and a permanent organism,
602, 603
Federal-Imperialist Party, in the
Continental Congress, 280, 281 ;
views of, expressed by the form
given American ultimatum, 290-
294 ; their position at the second
session of the Continental Con-
gress, 320-322 ; in the Congress
of the Confederation, position of,
concerning administration of the
Western region, 426, 431, 433,
439, 442-444
Fourteenth Amendment, effect of,
on political status of inhabitants
of American dependencies, 566,
France, administration of its de-
pendencies by, from 1600 to 1787,
11-24; from 17S7 to 1902, 474-
489
Franklin, Benjamin, drafts Albany
Plan of Union of 1754, 137 ; quo-
tation from his Reasons and Afo-
tives on which the Plan of Union
was Formed, 137, 138 ; examina-
tion before the House of Com-
mons in 1766, 175, 176; counsels
with Lord Chatham concerning
latter's Bill, 29S ; his Canada
Pamphlet, 350 ; his Plan for SeU
tling Two Colonies West of the
Allegheny Mountains, 350 ; re-
gards the Union as the Sovereign
of the Western region, 401
Freeman, Edward A., regards Ger-
many as a Federal Empire, 490 ;
views concerning Imperial Feder-
ation, 521
French Colonial Empire, of 1600 to
1750. 21, 24
French Colonial School, its estab-
lishment and objects, 487
French Constitution, of 1791, pro-
visions respecting the depenaen-
cies in, 476 : of 1795, provisions
on same subject in, 476 ; of 1800,
478 ; of 1 8 14, 478 ; of 1830, 479 ;
of 1848, 479; of 1852. 479: of
1875, situation respecting depend-
encies under, 479
French General Assembly, prepares
plan for Colonial Constitutions,
475
French Minister for Commerce, in
charge of the Colonies between
1 88 1 and 1890, 479
French Minister for the Colonies,
appointed in 1894, 480
French Minister for the Marine, in
charge of the Colonies until after
1881, 479
French National Colonial Congress,
of 1889, action regarding French
Imperial Council, 480, 481
French Society for the Abolition of
Slavery, effect of, in the French
Colonies, 475
French West Indian Colonies,
granted Local Assemblies by
Louis XVI., 474 ; Civil W^ar in,
475. 477
General Courts of Virginia Com-
pany, as Imperial Councils, 57
George III., opposes House of
Commons, 130
Georgia, Charter granted in 1732,
88
Germany, character of its Colonial
Empire, 490 ; administration of
its dependencies by, 489-497
Germany, Emperor of, his powers
respecting the dependencies, 491
Index
6ii
Gerry, Elbridge, his proposals con-
cerning administration of North-
west Territory, 419, 420, 425, 426
Girault, Arthur, Quotation from his
Principes (U Coiomsatum ft L/gis-
lation ColoniaU, 93, 477, 483
Government, popular and expert,
1-4 ; division of powers between
instrumentalities representing, 4-
6 ; acting and superintending
agencies of, 5
Government by affection, as substi-
tute for disposition, 540, 541
Grenville, Hon. George, assists
William Knox in writing the
pamphlet. The Controversy be-
tween Great Britain and the
Colonies Reviewed^ 224
Grey, Lord, revives Committee of
the Privy Council for Trade and
Plantations in 1849, 5^
Grotius, Hugo, his statement in his
Peace and IVar^ concerning Greek
and Roman conception of Impe-
rial power, 44, 472 ; derivation of
** territory," in his Peace and
War, 103
Guadaloupe, granted representation
in French General Assembly, 474 ;
and in French Parliament, 487,
488
Guilds, their application to coloniz-
ing operations, 52-54
H
Hamilton, Alexander, a Federal-
Imperialist in 1774, 282
Hartley, David, his first resolutions
for conciliation, 315-317 ; his
second resolutions, 335-337
Hawaii, administration of, 572, 573
Hillsborough, Lord, first Secretary
of State for the Colonies, 221 ; his
circular letter to the colonial gov-
ernors, 250, 251
Holland, policy of, respecting its
dependencies, 484
Hooper, William, responsible for use
of the word ** disposition *' to ex-
press the Imperial power, 349
Hopkins, Stepnen, quotation from
his pamphlet. The Grievances of
the American Colonies Candidly
Explained^ 154-156
39
Huskisson, William, his views con-
cerning statehood of dependen-
cies, 505
Illinois Company, its claims respect-
ing the Western region, 354
Imperial Council (American), pro-
posed, 588, 589
Imperial Council (British), proposi-
tions concerning. 521-530
Imperial Council (English and
British), of 1606, under Virginia
Charter, 3^38. 46, 47. 5^ ; for
Ireland, Lord Bacon's proposition
concerning, in 1606, 51 ; under
Vii^nia Charter of 1609, 55-57 ;
under Plymouth Charter Company
of 1620, 63 ; Privy Council as,
under Charles I., 66, 68; appointed
by Charles I. in 1634, 66-68 ; ap-
pointed by Lords and Commons
in 1643, 69 ; ordinance appoint-
ing, quoted, 69-72 ; the Council
of State of 1650-1651 as, 75 ; the
Council of Commerce of 1650 as,
(Under -Council), 75, 76; Lord
Protector's Council of 1653 as,
77 ; Council of Commerce of 1655
as, (Under-Council), 77, 78 ; Privy
Council as, under Cromwell, 78 ;
Council of State of 1658 as, 78,
79 ; Council of Foreign Planta-
tions of 1660 as, 79-82 ; Council
for Trade and Plantations of 1760
as, (Under-Council), 83-84 ; Com-
mittee of Privy Council for Plan-
tations Affairs as, 1670 to 1768,
84-88 ; Board of Commissioners
for Trade and Plantations as,.
(Under-Council), 1696 to 1782,,
84-88 ; for India in England es-
tablished in 1854. 511-514
Imperial Council (French), its insti-
tution and functions, 480, 48 1
Imperial Council (German), its in-
stitution and functions, 494
Imperial defence, problem of, in
British Empire, 530-534 ; Ameri-
can Union may adjudicate contri-
butions to, 599, 600
Imperial Department, proposed for
America, 588
Imperial Federation, movement for,
1885-1895, 520
6l2
Index
Imperial obligations, recognition of,
by Great Britain, 534-536 ; recog-
nized by U. S. Constitution, 578-
604
Imperial power, how described by
the Greeks and Romans, accord-
ing to Grotius, 44, 472 ; how de-
scribed in U. S. Constitution, 445-
473 ; as described by Congress
and the Supreme Court, 537-577
Imperial Secretariat, its functions as
described by Pownall, 208-223
Imperial State, expression first used
by Sir Francis Bernard, in 1768,
191
Imperial Unity, advocated by Pow-
nall in 1764, 191-207
India, its political relationship to
Great Britain, 508-518 ; in effect
a Federal State under a Substi-
tuted Central Government, since
1833, 508, 509 ; Governor-Gen-
eral of, in Council, his dispositive
powers, 510, 511 ; Council for, in
England, established in 1854, 511-
514
Indiana Company, its claims respect-
ing the Western region, 354 ;
memocial to Congress of 1779,
401
Indian tribes in America, instruc-
tions to Council for Foreign Plan-
tations of 1670, concerning, 83 ;
British administration of, in 1763,
142, 143 ; provisions respecting,
in Franklin's draft of Articles of
Confederation, 351 ; in Dickin-
son's draft of Articles of Confed-
eration, 352, 353, 357, 358 ; in
1784, acknowledged the Ameri-
can Union as their Sovereign, 405;
considered by Congress in 1782 to
be dependencies of the Union,
415, 416 ; relations with, in charge
of Secretary of War from 1789 to
1849, in charge of Secretary of
the Interior from 1849 to 1902,
577
Indo-China, French protectorates in,
in charge of Minister of Foreign
Affairs, 480
Ireland, administration of, from
1495 to 1600, 28 ; in 1606, 49 ;
Lord Bacon's advice concerning
•colonization of, 50 ; declared a
Province by William III., in 1690,
97, 98 ; Franklin's prof>osal to ad-
mit into American Union, 351 ;
granted legislative and judicial in-
dependence in 1782, 498, 499:
effect of British concessions on,
499, 500 ; union of, with Great
Britain, 1800, 501
Isle of Man, administration of, in
1606, 49
J
James I., proclamation of, relating
to Virginia, 64
Jay, John, in 1786-7, rc^rds Con-
gress as the Sovereign of the
American Union, 406
Jefferson, Thomas, his views in 1774
concerning relationship between
Great Britain and the American
Colonies, 188, 189, 282 ; his views
concerning Lord Chatham's Bill,
319, 320 ; his draft of the Declar-
ation on Taking up Arms of 1775.
320, 321 ; his statement of the
issues of the American Revolution,
323, 324 ; his views in 1775 con-
cerning dependence on Great
Britain, 334 ; his draft of the De-
claration of Independence re-
modelled, 343-347 ; drafts Reso-
lution of 1784 for the government
of the Northwest Territory, 420,
421 ; his views in 1787 concern-
ing the administration of the
Northwest Territory. 431, 432
Jellinek, Dr. Georg, quotation from
his work. Das Recht des Modtrrun
Staales^ 495
Jersey, Island of, statehood of
American Colonies derived from
by Pownall, iii
John, King of England, conception
of governmental power in time of,
25, 26
yohnson v. Mcintosh (8 Wheaton,
589), decision of Supreme Court
concerning political status of the
Indian tribes, 547-550
Judges, legislative powers of, in
Northwest Territory, 434, 435
Jurisdiction, meaning of in French
public law, 15
Jurisdiction, meaning of, as applied
to the power of a State over its
dependencies, 361
Index
613
K
Kentucky, provisions relating to, in
Dickinson's draft of Articles of
Confederation, 352. 356, 362, 363
King in Council, legislative powers
of, 264, 265, 273-276, 294, 297
King of France, power of, in admin-
istration of dependencies, 11-18
King of Great Britain, power of, in
the American Colonies, 131, 263-
265, 273-276, 292, 293, 341-347 ;
Address of American Colonies to,
of 1774, 288-293; of 1775, 325,
326, 340. 341
Knox, William, quotations from his
pamphlet. The Controversy be-
tween Great Britain and the Col-
onies Reviewed^ 225-233, 236, 237
Laband, Professor Paul, quotation
from his work. Das Staatsrecht
des Deutschen Reiches^ 492-494
Laisser-aller ^ period of, in British
Colonial policy, 519, 520
Land Companies, provisions con-
cerning, in Dickinson's draft of
Articles of Confederation, 353,
354. 358 ; their rights adjudicated
by Congress in 1783, 417
Laud, William, Archbishop of Can-
terbury, member of Imperial
Council of 1634, 66, 67
Law of the land, meaning of, in
U. S. Constitution, 471
LeFur, Louis, definition of the Fed-
eral Empire in his Atat Fiddral
et Confederation d'&tats^ 490
Legislation, power of Parliament
over the American Colonies
claimed to be power of, 177-
179; power of, distinguished
from power to regulate trade by
Dickinson, 275-277 ; power of,
distinguished from power of
disposition in U. S. Consti-
tution, 472 ; power of U. S.
Congress over District of Colum-
bia, a power of, 472
Leonard, William, his letters under
the name of Massachusettensis^
280
Leroy-Beaulieu, Paul, quotation
from his work, De la Colonisation,
chet les Peuples Modernes^ 585
Lewis, Sir George Comewall, his
Government of Dependencies,
quoted, 95, 96
Lord Chatham's Bill, quoted, 299-
304 ; its effect in America, 318-
320
Lord North's Conciliation Acts, of
1778, 377-380 ; action of Congress
concerning, 380-382
Lord North's Proposals, of 1775,
quoted, 309, 310 ; action of Con-
gress concerning, 327-329
Lord Protector's Council, of 1653,
as Imperial Council, 77
Loughborough v. Blake {^ Wheaton,
317), Territories distinguished
from ultramarine dependencies,
542, 543 ; views of Supreme
Court concerning the Imperial
power expressed in, 543-546
Louis XVI. of France, grants
West Indian Colonies local as-
semblies, 474
Louis XVIII. of France, policy re-
specting the dependencies, 478^
479
Louisiana, adminstration of, 1804-
1805, 539, 540
Lucas, C. P., definition of ** prov-
ince," 95, 96
M
Macaulay, Thomas B., his work in
India, 508, 509
Madagascar, in charge of French
Minister for Foreign Affairs, 480 ;
statement of French Government
regarding effect of annexation of>
484-4S6
Madison, James, declares American
Revolution not based on taxation
without representation, 324 ; in-
troduces resolution in Constitu-
tional Convention respecting de-
pendencies, 455, 456
Maine, grant of, by Charles I., 67,.
68
Manifesto of 1778 (American), to
people of the American Colonies^
387
Manifesto of 1778 (British), to peo-
ple of the American Colonies, 386,
387
6i4
Index
Mansfield, Chief Justice, his opinion
in Campbell \, Hall^ 295, 296
Maori tribes, principle of re-
sponsible government extended
to, 1852, 507
Martinique, granted representation
in French General Assembly, 474 ;
represented in French Parliament,
487, 488
Maryland, Charter of 1632 granted,
66 ; in 1783 declares American
Union the Sovereign of North-
west Territory, 405 .
Mason, George, views of, concern-
ing powers of Great Britain, 270-
272
Massachusetts, Act of Cession of
November 13, 1784, 415
Massachusetts Bay, Charter of 1629
granted, 66, 67 ; Charter ratified
by Imperial Council of 1643, 74 ;
Charter forfeited in 1684, 84 ;
Charter of 169 1 granted, 85 ; as a
Province under Charter of 1691,
97 ; in 1692, claims right to tax
itself, 120 ; claim granted by King
in Council in 1735, 120
Mast-timber Act of 17 10 objected
to by American Colonies, 121
McAllister v. The United States
(141 U. S., 174), view of the
Supreme Court concerning the
Imperial power in, 561, 562
Mercantile system, acquiesced in
by the American Colonies, 119,
120 ; attacked by Adam Smith,
1776, 383
Merivale, Herman, quotation from
his Lectures an Colonization and
Colonies^ 505
Meyer, Professor Georg, his views
concerning statehood of the Ger-
man dependencies in Die Stoats-
rechtliche Stellung der Deutschen
Schutzgebiete, 496
Monroe, James, his plan for the
government of the Northwest
Territory, 430, 431
Mormon Church v. The United
States (136 U. S., i), view of the
Supreme Court concerning the
Imperial power in, 560
Morris, Gouverneur, his characteris-
tics, and his standing in the Con-
tinental Congress of 1778, 378,
379 ; his Observations on the
American Revolution, 388-395 ;
in 1784 regards Congress as the
Sovereign of the American Union,
405 ; his resolutions in the Con-
stitutional Convention respecting
the dependencies, 458-465 ; his
statement in 1804 regarding the
Imperial clause of the U. S.
Constitution. 538, 539
Murphy v. Ramsey (114 U. S., 15),
view of the Supreme Court con-
cerning the Imperial power in,
559
N
Napoleon I., his policy towards the
French Colonies, 477, 478
National Bank v. County of Yank-
ton (loi U. S., 129), view of the
Supreme Court concerning the
Imperial power in, 558, 559
Navigation Act of 165 1, its purpose
andeflfect, 76, 119; of 1663, 119;
of 1696, 116, 119
Needful rules and regulations, mean-
ing of, in the Imperial clause of
the U. S. Constitution, 460-462
New States, power of admission of,
into American Union, 465, 466
New York, provisions of deed of
cession of March i, 1 781, 415
Niles, Hezekiah, quotation from his
Principles and Acts of the Revolu-
tion, 258
North Carolina, established in 1729,
88
North, Lord, his proposals to the
American Colonies, 310, 311 ; ac-
tion of Congress concerning, 327-
329 ; his views concerning re-
sponsibility of the Cabinet to the
House of Commons, 338, 339 ;
his Conciliation Acts of 1778, 377-
380 ; action of Congress concern-
ing, 380-382
Northwest Territory, provisions of
Dickinson's draft of Articles of
Confederation relating to, 352,
354-356, 358-362; claim of
American Union to, 403-405 ;
Resolution of October 10, 1780,
concerning, 412-415 ; original re-
port concerning administration
of, 419; Resolution of 1784 con-
cerning, 420-427 ; difficulties in
Index
615
Northwest Territory — Continued
administration of, 427-429 ; Ordi-
nance of 1787 for the government
of, 429-444 ; adaptation of Ordi-
nance of 1787 to U. S. Constitu-
tion by Act of 1789. 537, 538 ;
administration of, from 1787 to
1800. 538
Norton, Lord Chancellor, quotation
from his article How Not to Re-
tain the Colonies^ 533
O
Ohio Company, its claims respecting
the Western region, 354
Ordinance, meaning of, as used by
Congress of the Confederation,
408
Ordinance of 1643, for regulating
the Plantations, 69-72
Ordinance of 1787, for government
of Northwest Territory, as origi-
nally reported. 433-437 ; as
amended in Committee and by
Congress, 437-440 ; Articles of
Compact in, 440-442 ; Federal-
Imperialist theories evidenced by
form of Ordinance, 442-444
Ordonnance^ meaning of, in French
public law, 16
Otis, Tames, quotation from The
Rights of the Colonies Asserted
and Proved^ 151-153
Parkin, George R., quotation from
his Imperial Federation concern-
ing an Imperial Council, 523-526
Parliament (British), power of, as
claimed by Massachusetts 6av in
1646, 113, 114; power exercised
by, prior to 1750, 113-117; Brit-
ish claims concerning power of,
1764, 132 ; in Tariff Act of 1764,
145 ; in Stamp Act, 149 ; views of
Tames Otis (1764), 151, 152 ; of
Daniel Dulany (1765), 153. I54;
of Stephen Hopkins (1765), 154-
156 ; claim of American Colonies
in 1765, 1 59-161 ; Declaratory
Act of U 766, 177-179; views of
John Dickinson (1767), 180-190 ;
of Thomas Pownall (1768), 196-
207 ; of William Knox and George
Grenville (1769), 224-247 ; of
James Wilson (1774), 262 ; of Ed-
mund Burke (1774), 269 ; of John
Dickinson (1774), 272-279: power
of, recognized by Continental Con-
gress (1774), 284. 286 ; declared by
Lord Chatham to have a superin-
tending power (1775), 300, 307 ;
views of Edmund Burke concern-
ing power of (1775), 338 ; of Lord
North (1775). 338. 339; of the
Continental Congress, 339, 340,
394 ; modem views, 532, 533
Parliamentary Settlement, with the
American Colonies, advocated by
Sir Francis Bernard, 264, 265
Pennsylvania, Charter granted in
168 1, 84 ; position of General As-
sembly in 1765 regarding taxation,
157
Personality, dependencies may be
conceived of as possessing polit-
ical, 7, 8 ; claim of American Col-
onies to political, 239, 395-399
Petit, Edouard, views of, in his
Principes de Colonisation et de
Legislation Coloniale^ 483
Petit, l^milien, quotation from his
Dissertations sur le Droit Public
des Colonies Francoises Espagnoles
et AngloiseSy 17 ; from his Droit
PubHc ou Gouvernement des CoU
onies Francoises^ 23
Philippine Islands, American admin-
istration of, 574, 575 ; in chaise
of Secretary of War, 577
Pitt, William (Eari of Chatham),
speech regarding Stamp Act, 173-
175 ; see also Lord Chatham
Plan of Union, of 1754, its pro-
visions regarding dependencies,
135-141
Plantation, meaning of, 92
Plantations Branch of the Home
Office (British), administration of
the Colonies by, from 1782 to
1786, 500
Plymouth Company, of 1620, as an
Imperial Council, 63
Pollock, Sir Frederick, views of,
concerning an Imperial Council,
524. 525
Popham, Lord Chief Justice, drafts
Virginia Charter of 1606, 36
Popular government, defined, i ;
implies unconditional power, 2 ;
6i6
Index
Popular government — QmHnuid
may exist in any form of State, 2-
4 ; no modem State wholly under,
4
Porto Rico, special tariff for, held
valid, 562, 563 ; administration of,
574
Post Office Act, of 1707, objected to
by American Colonies, 121
Pownall, Thomas, quotation from
his book, Th€ Administration of
the Colonies^ ill, 112, 192, 210-
220
Poynings' Law, in Ireland, its pro-
visions, 50
Pradier- Fod^r^, M., derivation of
** territory" in his Trait/ de Droit
International Public^ 103
President of the United States, his
constitutional powers respecting
the dependencies, 445-453 ; pow-
ers actual! V exercised by him, 574 ;
properlv the active administrator
of the insulsu* dependencies, 581-
587. 593. 594
Privileged Companies (English),
their institution and objects, 52-
54
Privileged Companies (French),
their institution and objects, 18,
19
Privy Council, institution of, 26 ; as
Imperial Council under Charles
I., 66, 68 ; under Cromwell, 78 ;
Committee of, under Charles II.,
a«» Imperial Council, 84 ; Commit-
tee of, for Plantations Affairs,
continued from 1675 until 1782 as
Imperial Council, 88 ; same Com-
mittee revived in 17S4, 500;
ceased to exist in 1800, 501 ;
same Committee temporarily re-
vived in 1849, 506
Property, dependencies as, of the
State, 247, 248 ; meaning of, as
applied to dependencies, 361 ;
meaning of, in Imperial clause of
U. S. Constitution, 463, 464
Protectorate over uncivilized tiibes,
or constitutional protectorate,
meaning of, 353
Providence Plantations, Charter of
1644, its provisions, 72, 73
Province, meaning of, 94-100
Pym, John, member of Imperial
Council of 1643, 69-71, 73
(Juebec Act, of 1774, objections of
American Colonies to, 259
R
Raleigh, Sir Walter, as Lord Pro-
prietor of Carolina, 29, 30
Reflation, meaning of, in the pub-
lic law. 1 39-141
Regulation, plenary power of,
included in disposition, 419-444
Regulation of trade, power of, dis-
tinguished from legislation, 275-
277
Reichsland distinguished from
Sehutzgebiete by German Govern-
ment, 491
Representation of American Col-
onies in Parliament, regarded by
them as impracticable, 161, 162 ;
views of Sir Francis Bernard
(1764), 171-173 ; views of Thomas
Pownall (1768), 197-207
Representation on the Slate of the
Colonies, of 1754, quoted, 136,
137
Resolution, meaning of, as used by
Congress, 408, 409
Resolutions of Congress, of 1765,
concerning Stamp Act, 159-166 ;
of 1774, declaring rights and
grievances, 283-285 ; of 1775,
concerning Lord North's pro-
posals, 327-329. 332, 333 ; of
September 6, 1780, recommend-
ing cessions, 412 ; of October 10.
1780, regarding disposition of the
Western region, 412-415 ; of
1784, for the government of the
Northwest Territory, 420-427
Responsible government, definition
of by Lord Durham, 1839, 5^2,
503 ; Canadian view of, in 1841,
503. 504 ; principle oit, univer-
salized, 1854-1902, 507, 508, 518;
application of principle of, to In-
dia, 518
Reunion, Island of, represented in
French Parliament, 487, 488
Rhode Island, Charter of 1663
granted, 82
Rose V. Himely (4 Cranch, 241),
view of Supreme Court regarding
colonial relationship in, 508
Index
61/
Rougier, J. C. Paul, quotation from
his Precis de Legislation et d^&con-
omie ColoniaU^ 489
Rules and regulations respecting the
dependencies, meaning of, in
U. S. Constitution, 459
Salisbury, Lord, views of, concern-
ing Imperial Federation, 520, 521
San Domingo, granted representa-
tion in French General Assembly,
474
Sandys, Sir Edwin, assists in argu-
ment of Case of the Postnati^ 35 ;
his actions as Treasurer of Vir-
ginia Company, 58-62
Schui%geHetey administration of, by
Germany, 493-495
Scott V. Sandford (19 Howard, 393),
view of the Supreme Court con-
cerning the Imperial power in,
556, 557
Secretary of the Interior (American),
acting Secretary for the Territo-
ries smce 1873, 57^
Secretary of State for the Colonies,
in Great Britain, proposed by
Pownall, 1764, 208-221 ; ap-
pointed in 1768, 221 ; office abol-
ished in 1782, 498 ; Secretary of
State for Southern Department
as acting, 1 782-1 794, 209, 210,
500, 501 ; Secretary of State for
War as acting, 1794-1854, 501 ;
office re-established, 1854, 507
Secretary of State (for Foreign Af-
fairs), (American), acting Secre-
tary of State for the Territories,
1787-1873, 576
Secretary of State for the South-
em Department (British), acting
Secretary of State for the Colonies
until 1768, and from 1782 to 1794,
209, 210, 500, 501
Secretary of State for War (British),
acting Secretary of State for the
Colonies, 1794- 1854, 501
Secretary of War (American), in
charge of Indian Affairs, 1789-
1894, in charge of affairs with
Philippine Islands, 1899-1902, 577
Seeley, Sir John R., quotation from
his Expansion of England^ re-
garding India, 514-516
Sere v. Pitot (6 Cranch, 366), views
of Supreme Court concerning the
Imperial power in, 542
Slavery, effect of abolition of, in
French dependencies, 476
Smith, Adam, views of, concerning
colonial relationship, in his /»-
quiry into the Nature and Causes
of the Wealth of Nations, 383
South Carolina established in 1729,
88
Sovereignty, meaning of, as applied
to relationship of the American
Union to its dependencies, 401-
407
Stamp Act of 1765, its provisions
and their effect, 148-150 ; repeal
of, 176
Stamp Act Congress, its proceed-
ings, 158-168
State, political personality of the,
6 ; power over external lands and
populations as dependencies, 6-8
Statehood of the American Colonies,
a fact under American Constitution
of 1750, 125 ; resolution of Stamp
Act Congress a demand for, 161,
162 ; effect of a criticism of Wil-
liam Knox in strengthening the
American position, 238, 239 ;
American ultimatum of 1774 a
demand for, 290-293, 329-333
Statehood in American Union,
American dependencies not neces-
sarily entitled to, 468
Stengel, Carl von, his views con-
cerning statehood of the German
dependencies in his book, Die
Deutschen Schutzgebiete, 496
Subjection, declared by Continental
Congress to be conditional, 391-
395 ; meaning of, in a Federal
Empire, 395
Superintendence, used by Daniel
Dulany in 1765 to express the Im-
perial power, 154 ; used by Burke
in 1774, 269 ; used by Lord Chat-
ham in 1775, 299-304 ; used by
Committee of the Congress of the
Confederation in 1782, 404
Supreme Court of the United States,
its views concerning the Imperial
power of the American Union,
542-552, 55^572 ; its power as
the Supreme Court of the Ameri-
can Empire, 597
Index
Tariff Act. of 1764. tuprovkiotu uid
efleci. 144-148: of 1767, 179. iSa
T*riff-[/nion between American
Union and iU depcndenciB per-
miuilile. 59S. 599
Tautinn, of American Colonies,
British cUimi fielded b^ King in
Cotincil in 1735. I30 ; internal
•ndj eiiemil. the Peniuirlvania
view of, in 1765, 157 ; power of
Parliament in matter of, denied,
163-164 : American Colonies con-
lider parpo*e of. immaterial. 163.
164 ; viewa of William Pitt (Earl
of Chatham) in 1766. 173-175;
internal and external, distinction
advocated by Pitt, 175; internal
and external, distinction advo-
cated bjr Franklin in 1766, 175.
176; views of John Dickinson in
1767. 136-188; views of Thomas
Pownallin 1768, 197-107: internal
and eitemal, argument of Wil-
liam Knox. 338. 339 ; for regula-
tion of trade and for revenue,
argument of William Knox. 1769.
330-336 ; question concerning
American Revolution. 323, 3J4
Tea, connection of East India Com-
pany with importation of. 3$y-
357 : Tarid Acts relating 10, 354
Territorial DeleEale in Congress,
same as Colonial Agent. 433
Territories of the United States, dis-
tinguished by Supreme Court from
other dependencies, 543. 543 ; re-
lations with, in charge of Secre-
tary of State (for Foreign Affairs),
1787-1873. 576 ; in charge of Sec-
retary of the Interior, 1873-1902,
576 ; Congressional administra.
tion of. proper. 39"-S93
Territory, meaning of, 103-108 ;
meaning of. in U, S. Constilulion,
463. 463
Thrii
n Im
. Lord
s of, c
ning
:il. 525. 516
Thurlow, Attorney- General. Ian.
B..B= ilW in C,mfl„a ., /Ml
concerning power of the King in
the Empire, 395
Toild. Alpheus, quotations from his
book, I'arlmm.ntary Goveramtft!
in llu Britiik Cttumiu:. £30. 131.
S33. 5J4
Treaties of AUiaace and ''■ ••••
with France. o( 1773, Iheir tmg-
miioD of the Americu Eapfn.
374-377
Trtaly of Paris, of I763. prorisKHis
respecting America, I4t. 142
Tnnis. in curge of French Miniver
of Foreign Affairs, 4S0 : a consti-
tntioiul protectonte of France.
488
U
Ulster, colonization of. \sj GraU
Britain. 49, 54
Ultimatum of the American Colo-
nies to Great Britain. 1774, aSo-
|9 memorial lo Congress, of i
Vane, Sir Henry, member of Impe-
rial Council of 1643, 69-71, 73
Varro, M. Terentius, his derivation
of "territory," 104
Vattel. quotation from his Lata of
Nations, 13. 14. 140
Vermont, provisions concerning, in
Dickinson's draft of Articles of
Confederation, 353, 356. 363; its
rights adjudicated by Congress in
1784, 417
Virginia, characteristics of Charter
of 1606, 37-49 ; Charter of 1609.
its purpose and effect. 55-57;
Charter of 1611, its purpose and
effect, 57, 58 ; Ordinance of 1621.
recoeniiing statehood of, 59-61 :
forfeiture of Charters in 1634. 63 ;
called a " Dominion " until 1700,
thenceforward a " Province," 99 ;
Articles of Surrender of 1651, 115
W
Index
619
Washington, Geoi^e, views of, con-
cerning the colonial relationship,
270-273
West India Islands, Franklin's pro-
posal to admit into the American
Union, 351
Wilkinson, Spencer, quotation from
The NatiofC s Awakenings 534-536
William the Conqueror, conception
of governmental power in time
of. 25
William III., of England, his ad-
ministration of colonial affairs,
84-S8
Williams, Roger, agent of Provi-
dence Plantations. 68
Wilson, James, quotation from his
pamphlet. Considerations on the
Nature and Extent of the Legis-
lative Authority of the British
Parliament^ 261-263 ; his reply
to John Dickinson, 264, 265
Wodehouse, Sir P., in 1870 regards
British Empire as temporary, 519
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